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

[2021] AATA 418

Wood and Secretary, Department of Social Services (Social services second review) [2021] AATA 418 (8 March 2021)

Division:GENERAL DIVISION

File Number(s):      2020/1057

Re:William Wood

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:8 March 2021

Place:Sydney

The decision under review, being the decision of the AAT1 made on 26 February 2020 is affirmed.

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Mr S Evans, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – upper limb function – carpal tunnel syndrome – mental health function – depression and anxiety – whether the applicant’s conditions rate 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 18B

Social Security (Administration) Act 1999 (Cth)

Social Security Act 1991 (Cth) s 94

SECONDARY MATERIALS

COVID-19 Special Measures Practice Direction

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

REASONS FOR DECISION

Mr S Evans, Member

8 March 2021

1. William Wood (“Mr Wood”) suffers from carpal tunnel syndrome and depression and anxiety as a result of a workplace injury. Based on these conditions, Mr Wood made a claim for Disability Support Pension (“DSP”) and his claim was refused by the Secretary for the Department of Social Services (“the Secretary”). Mr Wood is seeking a review of the decision to reject his claim for DSP as he contends that all the relevant medical evidence was not considered by the Secretary.

   BACKGROUND

2. Mr Wood made a claim for DSP on 16 July 2019 and a DSP Medical Eligibility Assessment Recommendation was completed on 23 July 2019. Subsequently, an Authorised Review Officer (“ARO”) affirmed the decision to refuse his claim on 17 December 2019. Mr Wood sought review of the decision at the Social Services and Child Support Division of this Tribunal (“AAT1”) and, on 25 February 2020, the AAT1 affirmed the decision to reject Mr Wood’s claim.

3. Since the decision under review was made by the AAT1, Mr Wood has lodged additional evidence in relation to his claim which the Tribunal has taken into consideration.  

4. The matter was heard on 22 January 2021. Mr Wood was self-represented at the hearing. Both he and the representative of the Secretary appeared via telephone in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).

   CRITERIA TO BE APPLIED

   Qualification for disability support pension

5. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria for determining whether a person qualifies for payment of DSP:

   (1) 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;

   …

6. The Impairment Tables[1] referred to in paragraph 94(1)(b) of the Act, are used to assign ratings to determine the level of functional impact that a condition has on an applicant. Only medical conditions that are permanent, meaning those that have been fully diagnosed, fully treated, fully stabilised and are likely to persist for at least two years, can be assigned impairment ratings under the Impairment Tables.[2]

   [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Impairment Tables”).

   [2] Impairment Tables s 6(3)-(4).

7. Subsection 6(6) of Part 2 of the Impairment Tables sets out the requirements for a condition to be fully stabilised as below:

   (a)       either the 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 2 years; or

   (b)       the person has not undertaken reasonable treatment for the condition and:

   (i)           significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (ii)          there is a medical or other compelling reason for the person not to undertake reasonable treatment.

8. Reasonable treatment is defined at subsection 6(7) of the Impairment Tables as treatment that:

   (a)       is available at a location reasonably accessible to the person; and

   (b)       is at a reasonable cost; and

   (c)       can reliably be expected to result in a substantial improvement in functional capacity; and

   (d)       is regularly undertaken or performed; and

   (e)       has a high success rate; and

   (f)        carries a low risk to the person.

   The qualification period

9. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).[3]

   [3] Social Security (Administration) Act 1999 (Cth) s 42 and sch 2.

10. As noted, Mr Wood lodged his claim for DSP on 16 July 2019 and that triggers the assessment process to determine eligibility. Mr Wood must qualify for DSP on the date of the claim or within a period of 13 weeks thereafter (i.e. 15 October 2019). I will refer to this as the “qualification period”.

11. The practical implications for this application are that the Tribunal can only consider Mr Wood’s conditions and qualification for DSP during the qualification period. The Tribunal notes that the medical reports that came into being after the relevant period are only pertinent to the extent that they refer to Mr Wood’s conditions during the qualification period.

    Continuing inability to work

12. Paragraph 94(1)(c) of the Act requires that to be eligible for DSP a person must have a continuing inability to work. The requirement for a continuing inability to work is satisfied if the person has a severe impairment – meaning they have an impairment of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table. Alternatively, where the person’s impairment is not a severe impairment, the requirement for a continuing inability to work is satisfied if they have actively participated in a “program of support” and their impairment is of itself sufficient to prevent them from doing any work independently of a program of support, or undertaking a training activity, in the next two years.

    ISSUE

13. The issue before the Tribunal is whether Mr Wood qualified for the DSP during the qualification period.

    MR WOOD’S MEDICAL CONDITIONS

    Carpal tunnel syndrome

14. Mr Wood was first diagnosed with carpal tunnel syndrome in both wrists following a workplace injury with onset in April 2014. The Secretary accepts that Mr Wood’s carpal tunnel syndrome was fully diagnosed, treated and stabilised during the qualification period. Based on the evidence, the Tribunal agrees.

15. As the condition meets the criteria to be assigned an impairment rating, I will turn to what rating is appropriate under the appropriate impairment table - Table 2 - Upper Limb Function.

16. Dr Andrew Myers is an orthopaedic surgeon who writes that following a consultation with Mr Wood on 15 August 2019 he has concluded that the condition had reached “maximum medical improvement”. He describes how Mr Wood was required to deal with a burst water main under his driveway and required to use power tools as he was unable to pay someone to do it for him. Dr Myers states that whilst Mr Wood was able to complete the work, “he was only able to do it in small increments at 10 minutes at a time, before his pain was so bad”. It is reported that completing the work left Mr Wood with ongoing pain and discomfort. Dr Myers recommends that Mr Wood start looking for work in a permanent modified role involving non-manual and non-repetitive work.

17. Mr Wood has provided a report dated 28 July 2020 from orthopaedic surgeon Dr James Bodel. Dr Bodel’s assessment was made following a review of documents relating to Mr Wood’s condition and an assessment conducted by video. Dr Bodel states that Mr Wood has “no current capacity for work”, though he later writes that he “has limited capacity for work at the moment”. He confirms that Mr Wood experiences “ongoing pain and stiffness in the shoulder, elbow, wrist and hand with some associated numbness and tingling in the median nerve distribution.”

18. During the hearing, Mr Wood confirmed he is able to perform certain tasks including maintenance around the house and mowing the lawn with vibration gloves on. He is also able to drive for 5 kilometres and do his own shopping. He told the Tribunal that he usually eats frozen foods which he prepares himself and can lift items weighing up to 5 kilograms. If he is required to lift more than that weight, he will take painkillers in advance. Mr Wood can and does dress himself, but he notes that he wears shorts and a t-shirt most of the time and does not change his clothes before going to bed. In confirming his maintenance activities around the house, Mr Wood explained that since he ceased receiving workers compensation for his injuries, his financial situation is such that he cannot afford to pay someone else to do these jobs. He must persist regardless of how much pain they cause and how long the tasks take – which is a long time given that he is required to rest often.

19. The Secretary submits that Mr Wood’s carpal tunnel syndrome symptoms are consistent with a mild functional impact under Impairment Table 2. A moderate functional impact under the same table requires that an applicant has difficulty with, for example, picking up a 1 litre carton of milk, holding and using a pen and pencil, doing up buttons, using a standard computer keyboard or unscrewing the lid on a soft-drink bottle.

20. Mr Wood’s confirmed abilities and activities include driving a car, lifting up to 5 kilograms, filling a hole left by the plumbers and mowing his lawn. Whilst Mr Wood contests the evidence of Dr Bruce Westmore who reported on 29 June 2020 that Mr Wood could mow his lawn, it is apparent based on the reports of Dr Bodel and Dr Westmore, and Mr Wood’s own evidence, that he is capable of performing such tasks, albeit with a degree of difficulty which requires regular breaks and experiencing some pain if he exceeds his capabilities.

21. The Tribunal is satisfied that Mr Wood’s carpal tunnel syndrome functional impairment rating reaches the mild functional impairment rating and therefore receives 5 impairment points in respect of upper limb function.

    Depression and anxiety

22. Mr Wood’s mental health conditions appear to have been treated since July 2016 when consultant psychiatrist Dr Richa Rastogi diagnosed “Adjustment Disorder with depressed mood”. At this time, he recommended psychological treatment combined with the anti-depressant medication Valdoxan. Registered psychologist Carl Neilsen confirms that Mr Wood has been a patient at Workers Doctors since December 2015 and is “suffering with Chronic Adjustment Disorder with Depressed mood and is currently Psychologically unfit for work duties”.

23. The Secretary contends that whilst Mr Wood’s depression and anxiety conditions have been diagnosed, they are not fully treated and stabilised. This conclusion is supported by a report from General Practitioner Dr Calvache Rubio who wrote on 11 November 2019 that Mr Wood’s diagnosis of adjustment disorder with anxiety and depression was “temporary” with symptoms including “chronic pain, discomfort, low mood, low energy, poor motivation, financial distress, fatigue and weight gain.” Dr Rubio provided a prognosis that Mr Wood is “likely to show considerable improvement within the next 24 months”.

24. It is recorded by the ARO in December 2019 that Mr Wood’s future treatment was recommended to include psychologist and psychiatrist consultations. Subsequently, Mr Wood had advised he attended psychologist Erin Carmody each month but there was no evidence of him doing so. A report following this review by consultant psychiatrist Dr David Kumagaya dated 6 February 2020 is before the Tribunal. In this report, Dr Kumagaya provided details of Mr Wood’s condition but provided little insight into Mr Wood’s treatment relevant to the qualification period.

25. Before any impairment points can be assigned, the decision maker needs to be satisfied that the condition is fully diagnosed, fully treated and fully stabilised. Whilst Mr Wood’s mental health conditions are fully diagnosed, it is apparent from the evidence that during the qualification period there remained reasonable treatment options which had not been explored. Consequently, Mr Wood’s depression and anxiety is not eligible to be assigned an impairment rating.

    OTHER CONSIDERATIONS

26. Mr Wood told the Tribunal that this is his first claim for DSP. He also expressed frustration at the process of making a claim for DSP and explained that his claim was submitted with the assistance of Centrelink staff. Mr Wood understood that he had provided everything required for his claim to be successful and there is no reason for the Tribunal to doubt that was Mr Wood’s understanding.

27. Whilst the Tribunal appreciates this is frustrating for Mr Wood, the evidence before the Tribunal is insufficient to support an impairment of 20 points or more under the Impairment Tables. With an impairment rating of 5 points, Mr Wood is unable to satisfy the requirements in paragraph 94(1)(b) of the Act. Whilst Mr Wood’s conditions meet the requirement in paragraph 94(1)(a), the cumulative nature of the requirements mean that it is necessary to further satisfy paragraphs 94(1)(b) and (c) of the Act to be eligible for DSP.

28. Mr Wood also submitted that should he be granted DSP, it is likely that any benefits received will be returned to the Secretary upon settlement of his workers compensation claim. Although this may well be the case, it does not enable him to meet the eligibility requirements as set out in the Act.

    CONCLUSION

29. The Tribunal has concluded that Mr Wood was eligible for 5 impairment points during the qualification period. As this does not meet the requirement that his conditions warrant a total impairment of 20 or more points, it is not necessary for the Tribunal to consider if he meets the requirements in paragraph 94(1)(c) of the Act. Therefore, it follows that his claim for DSP cannot succeed.

    DECISION

30. The decision under review, being the decision of the AAT1 made on 26 February 2020 is affirmed.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate

Dated: 8 March 2021

Date(s) of hearing:	22 January 2021
Applicant:	In person
Solicitors for the Respondent:	Ms R Alam, Services Australia