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

[2018] AATA 767

White and Secretary, Department of Social Services (Social services second review) [2018] AATA 767 (6 April 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3603

Re:Mr Andrew White

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:6 April 2018

Place:Canberra

The Tribunal affirms the decision under review.

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Bill Stefaniak AM RFD, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – decision under review affirmed.

Legislation

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

Secondary Materials

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

REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

6 April 2018

INTRODUCTION

1. On 25 January 2016 the Applicant lodged a claim for disability support pension (DSP).

2. The claim was rejected by Centrelink both initially (on 13 June 2016) and on review (on 26 September 2016) on the basis that the Applicant did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act) as he did not have an impairment rating of at least 20 points under the impairment tables.

3. The Applicant appealed this decision to the AAT1 who affirmed it on 17 May 2017.

4. The AAT1 found that the Applicant’s impairment rating under the tables was zero due to the Applicant’s impairments either not being fully diagnosed, treated and stabilised, or in the case of his hand disorder, there being insufficient evidence to make a determination.

5. On 16 June 2017 the Applicant appealed to the General Division of the AAT and the matter was heard in Canberra on 8 March 2018 with the Applicant appearing by phone from Coonamble.

   RELEVANT LEGISLATION

6. Section 94(1)of the Act provided that a person qualifies for DSP if;

   (a)the person has a physical, intellectual or psychiatric impairment ; and

   (b)the person’s impairment rating is of 20 points or more under the Impairment Tables; and

   (c)the person has a continuing inability to work as defined in s 94(2) of the Act.

7. In accordance with the requirements of schedule 2 of the Social Security (Administration) Act 1999 (Cth), to qualify for the DSP, the Applicant must satisfy the requirements of s 94 of the Act as at the date of his claim or within 13 weeks of lodging the claim, namely between 25 January 2016 and 25 April 2016 inclusive (the claim period). The Tribunal can only consider the Applicant’s situation as at the claim period.

   ISSUES

8. The Tribunal was provided with various medical certificates and reports in the T documents plus further medical evidence after the claim period – namely an updated medical report dated 25 August 2017 from his General Practitioner, Dr Manoji Mihindukulasuriya

9. The Respondent conceded that the Applicant satisfied s 94(1)(a) of the Act and the Tribunal is satisfied that he had as at the claim period (and still has) depression and anxiety (mental health table 5), chronic lumber pain (table 4) and hand injuries (table 2).

10. Accordingly, the issues the Tribunal must determine in this mater are whether, during the claim period, the Applicant had:

    (a)an impairment rating of 20 points or more under the tables; and

    (b)a continuing inability to work as defined in s 94(2) of the Act.

11. An impairment rating can only be assigned if the condition causing that impairment is “permanent”. A condition is permanent if it:

    (a)has been fully diagnosed by an appropriately qualified medical practitioner. (In the case of a mental health condition this has to be by either a psychiatrist or a clinical psychologist and, in any other case, by a doctor); and

    (b)has been fully treated and stabilised; and

    (c)is more likely than not to persist for more than 2 years.

12. The impairment tables describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of the impairment.

13. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment – the evidence of the persons GP or another independent third party are examples of the type of corroborating evidence that is acceptable.

14. On the evidence before me, I consider the Applicant’s medical conditions for the purposes of his claim for the DSP are:

    (i)mental health issues;

    (ii)spinal condition; and

    (iii)hand condition.

    BACKGROUND

15. The Applicant impressed the Tribunal as a man who had been a hard worker in various jobs until he was no longer able to continue working due to health issues in 2015.

16. He is 53 years old, had completed year 10 at Coonamble High and was a carpenter and joiner by trade, although he had run a service station for 20 years before going back to the building trade where he taught at TAFE and ran his own business constructing fly screens and security screens until 2010.

17. The Applicant then got a well-paid (approximately $2,000 per week) but demanding job as a project supervisor with Program Facility Management based out of Coonamble which he held until July 2015 when he left due to depression and other issues.

18. The project supervisor job involved a lot of car travel and phone calls to his secretary who operated out of Dubbo. The job specialised in arranging tradesmen and services to construct Aboriginal housing, housing commission properties and disabled classrooms.

19. The Applicant from 1982 onwards suffered a series of injuries to his hands, including losing a thumb (right hand) and having a left arm operation in 2004 after a horse riding accident (he was also a horse trainer).

20. As a result of these injuries he had difficulties with his hands and suffered pain and numbness amongst other things in his hands – and pins and needles.

21. Due to his back pain, which came on very strongly after 2012 as a result of the amount of driving over rough country roads he was doing in his job, he told the Tribunal he got more and more depressed. He said he felt suicidal at one stage and had to stop work in July 2015. The job had been full on 24/7 he said since he started it in 2010. He was constantly on call. He went four years without a holiday.

22. He told the Tribunal that his conditions had worsened in the last two years.

23. I will now consider each of the Applicant’s medical conditions and their relative ratings under the impairment tables, if applicable.

    Mental Health

24. The Applicant’s GP in a medical certificate dated 25 November 2015 diagnosed the Applicant as suffering from depression/anxiety, which commenced in 2013 and noted that the Applicant was suffering from poor sleep and low mood and that the prognosis was uncertain. The Applicant was referred to Stephanie Ryan, clinical psychologist registrar.

25. Ms Ryan saw the Applicant and in a letter dated 3 February 2016 stated that he was suffering from a major depressive disorder and listed a recommended course of treatment including taking antidepressants.

26. The Applicant’s GP in a letter dated 15 February 2016 noted Ms Ryan’s treatment plan and ended by saying “his treatment prognosis is uncertain and the condition will have an effect on him for greater than 12 months but it depends on the patients response to medication and psychotherapy.”

27. It turned out that Ms Ryan was not a clinical psychologist but was a registered psychologist without endorsement in the field of clinical psychiatry. Accordingly, as the Applicant had not been diagnosed as required by law, by a clinical psychologist or by a psychiatrist as at the claim period, he had not been legally diagnosed.

28. At any rate the Respondent is correct to point out that even if the mental health condition was correctly diagnosed, the GP’s letter of 15 February 2016 makes it clear that it had not yet been fully treated and stabilised. Accordingly, this Tribunal cannot award any points under table 5 for those reasons.

    Spinal Condition

29. Whilst there was evidence before the Tribunal from the Applicant and his GP that he had suffered, and continued to suffer, from back pain since 2015 and that his back problems impacted on his ability to perform certain tasks, it is true to say that his spinal condition does not appear to have been actually diagnosed until after the claim period.

30. On 14 June 2016 the Applicant was referred by his GP for a CT scan on his hands and his lower back.

31. On 20 July 2016 his GP provided a medical certificate (see T documents page 97) that diagnosed Chronic Lumbar Pain Syndrome which was likely to deteriorate within 2 years.

32. Dr Marc Coughlan, a neurosurgeon, saw the Applicant on 18 November 2016 and diagnosed bilateral foraminal stenosis affecting the L5/S1 foramen with L5 symptoms. He said surgery would help the Applicant’s symptoms but it was unlikely the Applicant would return to full time work

33. Dr Coughlan went on to say in his report that  “Andrew’s condition is impacting on his activities of daily living and he is having difficulty bending, lifting, sitting for more than 5 to 10 minutes, is unable to bend or move forward or perform any overhead activities. Andrew does need family support for his everyday activities.”

34. On the basis of this report noting the Applicant’s condition as at 18 November 2016, the Tribunal notes that as a result of Dr Coughlan’s statement that the Applicant “is unable to bend or move forward” and his statement that he was unable “to perform any overhead activities”, plus “he is having difficulty… sitting for more than 5 to 10 minutes”, the Applicant would qualify for 20 points under impairment table 4.

35. The Tribunal notes that the Applicant has again applied for a DSP in September 2017 and no decision has yet been made. One would assume from that, provided his condition has not improved (and he told the Tribunal it “was twice as bad now”), going on Dr Coughlan’s report of 12 May 2017 which referred to his 18 November 2016 examination of the Applicant, he should get 20 points now for Table 4 – thus negating the need for him to undertake a program of support.

36. The Applicant told the Tribunal he developed back problems in 2012 and because he had to drive almost daily long distances over dirt roads the constant jarring did not help and caused him great pain necessitating him having to give up work in 2015.

37. He said Dr Coughlan also spoke to him and they discussed surgery and whilst the doctor said he could have surgery he also told him he could not guarantee success and surgery could make his condition worse.

38. The Applicant said, accordingly, he decided not to risk surgery. He takes pain relief medicine instead which helps control the pain. The Tribunal finds that this is a reasonable course of action in the circumstances and whilst Dr Coughlan does not refer to his conversation with the Applicant in his reports the Tribunal has no reason to doubt the Applicant’s evidence on that point and accepts it. It is not uncommon for a specialist like Dr Coughlan to make such an observation when discussing the risks involved in back operations.

39. Unfortunately, as the lower limb condition was not diagnosed until after the claim period it cannot be classified as at the claim period as being fully diagnosed, treated and stabilised and thus the Tribunal cannot assign it an impairment rating.

40. However, it is the Tribunal’s view from the evidence before it that an impairment rating can certainly be assigned as at September 2017 and that rating would, for the reasons already given, appear to be 20 points.

    Hand condition

41. Similar to the lower back condition the hand condition does not appear to have been formally diagnosed until after the claim period, namely after 14 June 2016 which was the date the Applicant’s GP referred him for CT scan.

42. The CT scan report dated 11 August 2016 noted that the Applicant’s right hand had mild degenerative changes but showed “satisfactory appearances” and the bones and articulations were “unremarkable”. No acute injury was seen.

43. In relation to the left hand, the report noted that there had been surgery on the thumb, a plate and screws put in plus fusion of a joint. The bones and articulations were otherwise satisfactory and there was no evidence of acute fracture. All other aspects of that hand were satisfactory (including the carpal) or normal.

44. At any rate out of all of his aliments, the Applicant stated that he made accommodations with how he worked to compensate for his hands problems. He told the Tribunal he learnt a lot from watching his father operate with only one arm.

45. As a matter of black letter law, it is correct to say that the hand problems have not been diagnosed until August 2016, outside the claim period. They do however appear to have been fully treated and stabilised well before that and the Applicant appears to have successfully trained himself to adjust his activities so as to operate successfully with this impairment.

46. Indeed, he has been so successful in adjusting to his hand problems that were he to be eligible for points under table 2 – upper limbs function – he would struggle to get 5 points.

    CONCLUSION

47. As a result of my findings above, the Applicant as at the claim period (26 January 2016 to 25 April 2016) did not meet the requirements of s 94(1)(b) of the Act as his impairments could not be rated at 20 points or more under the impairment tables. Accordingly, he did not qualify for DSP during the claim period.

48. I would further add, however, that the Applicant did not partake in a face to face Job Capacity Assessment, only what appears to have been a brief one conducted over the phone.

49. The Applicant impressed the Tribunal as a man who was very frustrated as a result of his injuries and ailments and the fact that he had to give up work. He would love to be able to work but feared that it was highly unlikely he would be able to again.

50. The Applicant told the Tribunal that he had helped people all his life – he had at times paid the bills for his mum and dad; he helped his mates; and he paid a whole lot of taxes in the past because he was a very hard worker and had well-paying jobs and ran, at various times, successful businesses.

51. The Tribunal is impressed by the contribution the Applicant has made to his community through his hard work and community spirit. It is a shame to see him afflicted as he is.

52. As indicated during the hearing the Tribunal notes that the Applicant currently has a new claim for DSP afoot which had, as at 8 March 2018, not yet been decided. The Tribunal has already made some comment in relation to this in relation to his lower spinal problems and would add that he seems to have some significant mental health problems which need to have been diagnosed by a psychiatrist or a clinical psychologist.

53. The Tribunal hopes this has occurred and can thus progress his claim relation to his mental health issues (table 5).

54. The Tribunal notes that any fresh application (such as the one currently afoot) should be supported by new reports from relevant health professionals (such as psychiatrists or clinical psychologists – for table 5) – and for all other matters (namely his back and hands) – from his GP addressing the relevant impairment tables, commenting on the descriptors therein and assigning him points for each condition.

    DECISION

55. For the reasons given above, the decision under review will be affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

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Associate

Dated: 6 April 2018

Date(s) of hearing:	8 March 2018
Applicant:	In person
Solicitors for the Respondent:	Ms C Inglis, Department of Human Services