William Hoschke and Secretary, Department of Social Services

[2015] AATA 394

[2015] AATA 394 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/4154
Re	William Hoschke
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	4 June 2015
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

CATCHWORDS

DISABILITY SUPPORT PENSION – Decision to cancel payments – Insufficient points allocated under Impairment Tables at the relevant time – Psychological impairment not fully diagnosed by appropriately qualified medical practitioner – Lower limb impairment not fully treated and stabilised – Upper limb impairment allocated 10 points – No entitlement to DSP at time of cancellation – Decision under review affirmed.  

LEGISLATION

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

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

REASONS FOR DECISION  

Senior Member Bernard J McCabe

4 June 2015  

1. Mr Hoschke was being paid the disability support pension (DSP) up until 19 March 2014 when it was cancelled because Centrelink concluded (on behalf of the Secretary of the Department of Social Services) that his conditions could not be assigned enough points under the Impairment Tables. (The Impairment Tables were changed after Mr Hoschke’s original grant of DSP: the same condition or conditions did not attract as many points as they did previously.) Mr Hoschke continued to receive payments while the decision was reviewed by the Social Security Appeals Tribunal, but the payments were finally stopped on 25 June 2014. He made a subsequent application and was found to be eligible for the DSP from 27 October 2014. This case is about Mr Hoschke’s entitlement to be paid the DSP in the period between 26 June and 26 October 2014.

2. Mr Hoschke says his DSP should not have been cancelled in March 2014. To assess whether he is right, I must look at the evidence concerning his various medical conditions and the impairment that resulted at the time of the cancellation decision. I must then apply the so-called “medical criteria” in s 94(1) of the Social Security Act 1991
   (“the Act”) to determine whether he was entitled to the DSP at the relevant time, and therefore entitled now to recover the money he would have been paid (but did not receive) before DSP was finally restored in October 2014.

   Mr Hoschke’s medical conditions

3. Section 94(1)(a) of the Act requires that I be satisfied Mr Hoschke was suffering from one or more medical impairments at the relevant time. There is no doubt he was suffering from a range of conditions in March 2014: he experienced a right shoulder condition that he said was brought on by a work-related injury in 2009; a right foot condition (described by his podiatrist as right foot talipes equinovarus) that has been present since birth; and depression. He may also have been experiencing an impairment of his mental functioning as a consequence of pain in his lower limb.

   Assigning impairment points under the relevant tables

4. The second criterion – set out in s 94(1)(b) of the Act – requires that the decision-maker be satisfied the applicant’s medical conditions should be assigned at least 20 points under the Impairment Tables. The Impairment Tables are published in an instrument titled Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”). The instrument sets out a separate impairment table for each aspect of the body. Each table describes how seriously a person’s functional impairment must be in order to receive a particular rating: more significant impairments receive higher ratings.

5. Before impairment ratings can be assigned, several things must be kept in mind. To begin with, s 6(2) of the Determination requires the decision-maker to have regard to the person’s medical history. Section 8(1) of the Determination says the decision-maker must not take into account the symptoms reported by the person unless those symptoms are corroborated (i.e., confirmed) by other evidence.

6. It is also important to remember the decision-maker must be satisfied the conditions have been fully diagnosed by an appropriately qualified medical practitioner, and have been fully treated and fully stabilised at the time of the assessment: ss 6(4); 6(5) and 6(6) of the Determination. If a condition has not been diagnosed by an appropriately qualified expert, or if investigations are still to be made or treatment strategies still to be evaluated, it will not be possible to assign an impairment rating.

7. Unfortunately for Mr Hoschke, this is where his case runs into difficulty. Nobody doubts he has been ill for some time and that he experiences a range of medical conditions.

   
   

   But the decision-maker must be satisfied he meets the strict criteria laid out in the Act and in the Determination.

8. To begin with, it is clear Mr Hoschke’s depression condition was not diagnosed by an appropriately qualified expert at the relevant time. He was diagnosed by his general practitioner and commenced treatment, but Table 5 – the impairment table relating to mental health – requires that the condition be diagnosed by a psychiatrist or a medical practitioner with evidence from a clinical psychologist. There is no evidence to suggest the diagnosis provided by the applicant’s treating general practitioner was informed by advice from a clinical psychologist. That means the condition cannot be said to have been diagnosed at the relevant time, which means an impairment rating cannot be assigned.

   
   

   (I note Mr Hoschke says he has now started to see a clinical psychologist.)

9. The Secretary says the applicant’s lower limb condition was also not fully treated and stabilised at the relevant time. Mr Hoschke says he has had the condition since birth.

   
   

   He recalled having had many, many surgical procedures and other invasive treatments over the years. He says those unsuccessful interventions have left his knee, in particular, in a terrible state. He also says he is reluctant to undertake further surgery.

10. Dr Galley did not emphasise this condition in his original report dated 20 January 2014 (exhibit one at pp 111ff), although he addressed it more comprehensively in a subsequent report dated 4 November 2014 (exhibit two at p 1ff). Mr Hoschke says the condition was serious when the original report was completed, but he said he was used to downplaying the impact of the condition and may not have told the doctor clearly how much difficulty he experienced. There is also a letter from Mr Hoschke’s treating podiatrist dated

    
    

    16 December 2014. Mr Cavanagh, the podiatrist, agreed the lower limb condition had a very serious impact on the applicant that justified a rating on the basis of a moderate to severe functional impact. But he added the function and symptoms could be expected to greatly improve with proper specialist treatment. He urged the applicant’s treating doctor to make a referral. That occurred, and Mr Hoschke saw the specialist the day before the hearing. I was told the specialist has ordered imaging studies.

11. There is no doubt as to the diagnosis of Mr Hoschke’s lower limb condition. Nor is there any doubt that it causes him significant discomfort. He spoke of having to punch his knee when it became dislocated. But the evidence before me suggests that, at the relevant time, the condition was not fully treated and stabilised. It remains to be seen what the orthopaedic surgeon suggests can be done in the future. At the relevant time, however, an impairment rating should not have been assigned.

12. In December 2014, a job capacity assessor formed the view that chronic pain from the lower limb condition compromised Mr Hoschke’s concentration and cognitive functioning. On that basis, the assessor assigned 5 points under Table 7, which deals with brain function. While I do not dispute the pain from the lower limb condition is an issue that may impact on brain function, I do not think an impairment rating can be assigned where the lower limb condition itself has not been fully treated and stabilised.

13. That leaves only the applicant’s shoulder condition. I am inclined to agree with the assessment of the Social Security Appeals Tribunal that Mr Hoschke is entitled to

    
    

    10 impairment points, but that conclusion is largely based on his self-reporting of symptoms and their impact. In the end analysis, it does not make any difference: even if I agree he was entitled to 10 points under Table 2 (which deals with upper limb function), and took into account the chronic pain and accepted he should be allocated 5 points under Table 7, he still does not achieve a total of 20 points during the period under review.

    Conclusion

14. Mr Hoschke is in a bad way. He is living in an isolated area and doing his best to raise his young son on limited financial resources. He is in constant pain and has difficulty accessing appropriate assistance. He has obviously been a stoic individual who avoided making an issue out of his long-term lower limb condition. Perhaps he has been too uncomplaining: if he had explained his situation more insistently to his doctors in recent years, there would be better records to support his case. Unfortunately, the evidence before me suggests his conditions did not attract enough points under the relevant impairment tables to qualify for the DSP at the time it was cancelled in March 2014.
    In those circumstances, the decision under review must be affirmed.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated   4 June 2015                 

Date of hearing	21 May 2015
Applicant	By telephone
Solicitor for the Respondent	Mr R McQuinlan Department of Human Services