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

[2022] AATA 525

Williams and Secretary, Department of Social Services (Social services second review) [2022] AATA 525 (23 March 2022)

Division:GENERAL DIVISION

File Number(s):      2021/7645

Re:Edward Williams  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member K Millar

Date:23 March 2022

Place:Adelaide

The Tribunal affirms the decision under review.

.............[Sgnd]................

Senior Member K Millar

Catchwords

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – whether applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether applicant’s conditions attracted an impairment rating of at least 20 points – whether applicant had a continuing inability to work – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Secondary Materials

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

REASONS FOR DECISION

Senior Member K Millar

23 March 2022

BACKGROUND

1. Mr Williams was first granted Disability Support Pension (DSP) on 15 October 1998. His pension was suspended and then cancelled in May 2019. Mr Williams lodged a new claim for a DSP on 9 June 2020. His claim was refused, and subsequent reviews by an Authorised Review Officer and the Social Services and Child Support Division of this Tribunal (AAT1) affirmed this decision. Mr Williams seeks a review of the decision to refuse his application.

2. To be granted DSP, Mr Williams must have a physical, intellectual or psychiatric impairment, his impairments must attract 20 or more points on the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables), and he must have a continuing inability to work. If he does not have a severe impairment as defined in the Act, he must also have actively participated in a program of support to meet the requirement to have a continuing inability to work.

3. In his application form, Mr Williams stated he has problems with his back, his knee, his right shoulder and his mental health. 

4. The Authorised Review Officer found that Mr Williams’ impairments could not be allocated points under the Impairment Tables as none of his medical conditions were considered to be fully diagnosed, treated and stabilised. AAT1 found that his shoulder and mental health were not fully treated and stabilised. It found that his back condition was fully diagnosed treated and stabilised, but could only be allocated 5 impairment points, and therefore he did not meet the requirement to have an impairment rating of at least 20 points on the Impairment Tables. 

   QUALIFICATION FOR DISABILITY SUPPORT PENSION

5. Under s 94(1) of the Social Security Act 1991 (the Act) to qualify for a DSP the person must have a physical, intellectual or psychiatric impairment, the impairment or impairments must be of 20 points or more under the impairment tables and the person must have a continuing inability to work.

6. The time in which Mr Williams must meet these requirements starts on the date he claimed DSP and ends 13 weeks after this date.[1]  Mr Williams claimed DSP on 9 June 2020, and the 13-week period ends on 8 September 2020 (the claim period).

   [1] Sections 41 and 42 of the Administration Act, Clause 4 of Schedule 2 of the Administration Act, and Gallacher v Secretary, Department of Social Services [2015] FCA 1123.

7. Any new conditions, a deterioration in Mr Williams’ existing conditions, or conditions that were only fully treated, diagnosed and stabilised after the end of the assessment period cannot be considered in assessing his qualification for this claim.

8. The Secretary accepts Mr Williams had physical impairments in the assessment period, but disputes he has impairments that attract any impairment points because none of his impairments were fully diagnosed, treated and stabilised. The Secretary further submits that even if Mr William’s impairments were fully diagnosed, treated and stabilised, they do not attract 20 points or more on the Impairment Tables.

   Does Mr Williams have an impairment of 20 points or more under the impairment tables?

9. The Impairment Tables set out rules for when an impairment rating can be assigned and provide a rating system. To be given a rating under the Impairment Tables, the condition causing the impairment must be permanent, and the impairment must be more likely than not, in light of available evidence, to persist for more than two years.[2]

   [2] Clause 6(3) of the Impairment Tables.

10. To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner and be fully treated, fully stabilised and more likely than not to persist for two years.[3]

    [3] Clause 6(4) of the Impairment Tables.

11. The Impairment Tables set out at clause 6(6) when a condition is considered fully stabilised.  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 a significant functional improvement to a level enabling the person to undertake work in the next two years.[4] Reasonable treatment is treatment that can, among other things, reliably be expected to result in a substantial improvement in functional capacity,[5] and that has a high success rate.[6] 

    Which of Mr Williams’ conditions were fully diagnosed, fully treated and fully stabilised and likely to persist for two years in the assessment period?

    [4] Clause 6(6)(a) of the Impairment Tables.

    [5] Clause 6(7)(c) of the Impairment Tables.

    [6] Clause 6(7)(e) of the Impairment Tables.

12. In his application form, Mr Williams lists his conditions as “lower back, spine issues, knee issues, right shoulder issues, PTSD, depression”.[7] 

    [7] T7, p 140.

    Back Condition

13. Mr Williams has a long history of back problems. A report from a doctor at Health Services Australia in 1998[8] states he has severe back pain from a lifting sprain when he was working as a furniture removalist in 1994. This report states it is likely he will remain unfit for any regular full-time work or training for the next two years. Mr Williams was considered eligible for a DSP because of his back pain; however, it is also stated he may recover in 2 years with rest and treatment.[9]

    [8] T12.

    [9] Ibid, p 227.

14. A medical report dated 9 April 2003 states the planned treatment at that time was to do a CT scan.

15. A CT of his lumbar spine dated 3 June 2020[10] shows mild disc bulges in L2/3, L3/4, L4/5 and L5/S1 with minimal degenerative change. There was a query about an incompletely imaged area. 

    [10] Ibid, p 255.

16. Turning to the claim period, a medical certificate dated 29 June 2020[11] reports Mr Williams suffers low back pain and stiffness. It states, “physiotherapy to be organised, consider referral for pain specialist”.   

    [11] Ibid, p 252.

17. Medical certificates provided by Mr Williams to Centrelink after the claim period include:

    ·     Medical certificate from Dr Abdullah dated 18 October 2020[12] which reports chronic low back pain with symptoms being low back pain and stiffness with the prognosis being likely to persist. 

    ·     Medical certificate from Dr Abdullah dated 18 January 2021[13] which reports chronic low back pain with symptoms being low back pain and stiffness and the prognosis as stabilised. 

    ·     Medical certificate from Dr Abdullah dated 19 July 2021[14] which reports multilevel lumbar spine arthritis – mild disc bulges and facet joint arthritis with symptoms of low back pain and stiffness with an uncertain prognosis. 

    ·     Medial certificate 20 April 2021[15] which  provides a diagnosis of chronic low back pain which is reported to be stabilised.

    ·     Medical certificate 19 July 2021[16] provides a diagnosis of multilevel lumbar spine arthritis – mild disc bulges and facet joint arthritis. The symptoms are low back pain and stiffness, and the prognosis is uncertain. 

    ·     A report from a CT scan dated 14 October 2021[17] states a guided steroid injection could be performed at L4/5 and a trial of steroid injection into the symptomatic sacro-iliac joint would confirm or exclude sacro-iliac inflammation or arthropathy as a contributor to the clinical syndrome.[18]

    ·     Medical certificate 19 October 2021[19] states he has multilevel lumbar spine arthritis, mild disc bulges and facet joint arthritis, with the prognosis being uncertain. The symptoms are listed as low back pain and stiffness.

    [12] Ibid, p 254.

    [13] Ibid, p 262.

    [14] T15, p 306.

    [15] Ibid, p 307.

    [16] Ibid, p 306.

    [17] Ibid, p 311.

    [18] Ibid, p 311.

    [19] Ibid, p 308.

18. In the claim period, Mr Williams’ diagnosis was low back pain and stiffness, and this is the condition that must be considered. It is supported by the CT scan showing mild disc bulges.  Mr Williams was subsequently diagnosed with lumbar spine arthritis, however this diagnosis does not form part of his condition in the claim period.    

19. In the claim period Mr Williams had been released from prison relatively recently and did not have the funds to pursue his preferred treatment.

20. Mr Williams initially said he did not receive any treatment in prison other than occasional Panadol. He said that medical treatment was not available while he was on remand, and he was on remand for a lengthy period. At a later point he said he was told the only treatment available was physiotherapy, and because a physiotherapist nearly paralysed him once, he would not see a physiotherapist. His preferred chiropractic treatment was not available. Hydrotherapy was also not available. Now he has been released from prison, Mr Williams said he cannot afford these treatments. Mr Williams said he did not have a CT scan of his back while in prison, and it is not clear whether this was offered.

21. Reasonable treatment as defined in cl.6(7) of the Impairment Tables is treatment that is available at a readily accessible location, at a reasonable cost, can reliably be expected to result in substantial improvement in functional capacity, is regularly undertaken or performed, has a high success rate and carried a low risk. Physiotherapy is a treatment recommended by Dr Abdullah, together with a potential referral to a pain clinic. 

22. While Mr Williams states he did not want physiotherapy treatment in prison. According to his evidence this was available to him in prison and was therefore at a location and cost accessible to him. Medicare rebates are available in the community for physiotherapy for a chronic health condition.[20] The Tribunal finds this is reasonable treatment as defined in the Impairment Tables and was recommended by his doctor. It finds that in the claim period his back condition was not fully treated. 

    [20] Medicare Benefits Schedule – Item 10960, Australian Government Department of Health, available online at: www9.health.gov.au/mbs/fullDisplay.cfm?type=item&q=10960

23. As this condition is not fully diagnosed, treated and stabilised it cannot be assigned impairment points.  

    Knee

24. Mr Williams refers to knee issues in his claim form. There are no medical reports that refer to a knee condition, and this condition is not diagnosed or treated and cannot be assigned impairment points. 

    Right Shoulder

25. Mr Williams had a right shoulder ultrasound and steroid injection into his bursa on 3 June 2020.[21] The report of the right shoulder ultrasound is that there is tendinosis of the subscapularis and supraspinatus. It is reported that bursal impingement results in pain at 90 degree of abduction although there was a mild degree of limited bursal rotation. 

    [21] T12, p 255.

26. The medical certificate dated 29 June 2020[22] reports a diagnosis of shoulder pain and recent shoulder steroid injection.

    [22] Ibid, p 252.

27. The medical certificate from Dr Abdullah dated 18 January 2021[23] provides a diagnosis of right shoulder pain, with symptoms of shoulder pain and limited range of movement. It is reported that the prognosis is uncertain. 

    [23] Ibid, p 262.

28. Subsequent medical certificates from Dr Abdullah from 18 January 2021, 19 July 2021, and 24 April 2021, report a diagnosis of shoulder pain resulting in shoulder pain and limited abduction. The 19 October 2021 certificate states the prognosis of his right shoulder pain is uncertain.

29. An ultrasound scan from 14 October 2021 reports tendinosis, subacromial bursitis and rotator cuff impingement and reports a further steroid injection into his shoulder on that date.[24]

    [24] T15, p 309.

30. Mr Williams said he had scans on his shoulder while he was in prison, as the injury to his shoulder occurred when he was arrested, and he had cortisone injected into his shoulder when he was in prison.

31. The Tribunal considered whether to summons prison health records to corroborate his account of long-term treatment with steroid injections. In deciding not to summons these health records, the Tribunal considered whether they could ultimately affect the outcome.  For the purposes of this assessment, it proceeded on the presumption that the medical records would support his account, and that his shoulder condition was fully diagnosed, treated and stabilised. As can be seen, this does not ultimately affect the outcome of this matter, and as a result the Tribunal decided not to summons the prison health records. 

32. Mr Williams regularly receives cortisone injections, and the as a result his shoulder condition is fully diagnosed, treated and stabilised. This was because rather than this treatment being expected to result in a functional improvement, it may allow Mr Williams’ shoulder condition to be maintained at the current level of function.

33. Mr Williams stated his shoulder condition affects his right shoulder and because he is left hand dominant, he can use his left hand for many activities such as writing. He can therefore also use his left hand for turning the pages of a book and using a computer keyboard.

34. Mr Williams objected to a consideration of his ability to use a computer keyboard because a condition of his release is that he does not have access to a computer or the internet. However, this is about his functional ability and not practical barriers and the Tribunal does not consider there is sufficient corroborating evidence to show he could not use a computer keyboard with his left hand. Mr Williams does his shopping in small amounts so he can carry his shopping in his left hand and to allow him to lift bags into his car. 

35. Mr Williams’ description matches an impairment rating of 5 points on the Impairment Tables, which is:

    (1)The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

    (a)picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

    (b)handling very small objects (e.g. coins);

    (c)doing up buttons;

    (d)reaching up or out to pick up objects

36. This description of his functional ability does not meet the requirements for 20 impairment points, which requires:

    (1)Most of the following apply to the person:

    (a)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

    (b)the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

    (c)the person has difficulty using a computer keyboard despite appropriate adaptations;

    (d)the person has severe difficulty using a pen or pencil; and

    (e)the person has severe difficulty turning the pages of a book without assistance.

37. The Tribunal has proceeded on the assumption that his account of cortisone injections would be corroborated by Prison Health Records, however based on Mr Williams’ description of his conditions, this matches the descriptor of 5 impairment points. 

    PTSD and Depression

38. A medical certificate dated 29 June 2020 states Mr Williams’ diagnosis is one of anxiety and depression, and that the doctor “will organise health plan and counselling with psychologist”. 

39. A Mental Health Care Plan dated 2 July 2020 is attached to a referral to a psychologist. A medical certificate dated 18 January 2021 from Dr Abdullah states “likely to show considerable improvement within 2 years”.

40. A report from a registered psychologist dated 24 May 2021 states Mr Williams suffers major depressive disorder and chronic pain following a workplace injury in 1997. The report conveys Mr Williams history as self-reported. It states he engaged in seven sessions and made minor gains but stopped progressing due to poor psychological mindedness and issues with interpersonal hostility. The registered psychologist reports his condition can be considered fully treated and states he has not significantly improved since his release from prison in May 2020.

41. During the claim period, Mr Williams had not yet undertaken reasonable treatment for this condition, and at that time this was expected to result in functional improvement. That there has not been functional improvement may provide the basis for a future claim, but does not show this condition was fully stabilised in the claim period. As a result, the Tribunal considers this condition is not fully stabilised as further treatment is likely to result in significant functional improvement. The Tribunal notes, in addition, that for this condition to be assigned any impairment points in the future the assessment must be from a clinical psychologist, a medical practitioner, or a psychiatrist. 

42. As a result, this condition cannot be assigned an impairment rating. 

43. As a result, Mr Williams does not have an impairment rating of 20 points or more in the Impairment Tables and does not meet s.94(1)(b) of the Act.

    CONTINUING INABILITY TO WORK

44. In addition to qualify for DSP, s.94(1)(c)(i) of the Act requires that Mr Williams had a continuing inability to work. 

45. As it applies to Mr Williams, s.94(2) of the Act provides that a person has a continuing inability to work if (among) other things the person does not have a severe impairment and the person has actively participated in a program of support.

46. To have a severe impairment, the impairment must result in 20 or more points being assigned under a single Impairment Table.[25]  Even accepting Mr Williams’ account of his shoulder impairment this does not achieve an impairment rating of 20 points on a single Impairment Table.

    [25] s.94(2)(3B) of the Act.

47. As a result, he would have had to meet the program of support requirements in the claim period. Mr Williams has not participated in a program of support as he had been in prison in the period before his claim. Mr Williams submits, and the Tribunal accepts, that it was not possible for him to participate in a program of support.

48. As a result, Mr Williams also does not meet s.94(1)(c) of the Act.

    CONCLUSION

49. The Tribunal can appreciate Mr Williams’ frustration with this process as he previously received a DSP over a lengthy period of time. However, the requirements for this payment have changed, and the Tribunal must use the legislation that applies in the claim period. The Tribunal also appreciates that Mr Williams is struggling with his mental health, his financial position, and the difficulties he faces having left prison with minimal social support. 

50. However, even proceeding on the assumption that Mr Williams’ shoulder condition is fully diagnosed, treated, and stabilised, Mr Williams does not have an impairment rating of 20 points or more under the Impairment Tables and does not meet s.94(1)(b) of the Act. As he does not meet the program of support requirement, he also does not have a continuing inability to work as required by s.94(1)(c) of the Act.

51. As a result, he does not qualify for a DSP. 

    DECISION

52. The Tribunal affirms the decision under review. 

    ……………[Sgnd]………………

    Legal Administrative Assistant

    Dated: 23 March 2022

Date of hearing:	2 March 2022
Applicant:	Self-Represented
Advocate for the Respondent:	Mr Christian Visser, Services Australia