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

[2017] AATA 2384

Woods and Secretary, Department of Social Services (Social services second review) [2017] AATA 2384 (19 September 2017)

Division:GENERAL DIVISION

File Number:           2017/0185

Re:Robert Woods

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Brigadier G Warner, Member

Date:19 September 2017

Date of oral reasons:            3 November 2017

Place:Perth

The decision under review is affirmed.

...(Sgd)......................................

Brigadier G Warner, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant’s impairments were fully diagnosed, fully treated and fully stabilised – whether applicant’s impairments attract 20 points under the Impairment Tables – continuing inability to work – decision under review affirmed

LEGISLATION

Social Security Act 1991 – s 94 – s 94(1)(b) – s 94(1)(c)

CASES

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 6 – Table 5

ORAL REASONS FOR DECISION (EDITED)

Brigadier G Warner, Member

3 November 2017     

Brigadier AG Warner, Member: This hearing was conducted on 19 September 2017.  Mr Woods attended and gave evidence before the Tribunal.

1. Mr Woods seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal, dated 13 December 2016, and that decision affirmed an earlier decision to reject his claim for Disability Support Pension, which he lodged on 2 February 2016.

2. The Tribunal today must decide whether at the date of the claim for DSP, that is 2 February 2016, or within 13 weeks of that date, Mr Woods had any physical, intellectual or psychiatric impairments.  If so, whether the impairments attract an impairment rating of at least 20 points under the Impairment Tables, and if so whether Mr Woods had a continuing inability to work.

3. The statutory provisions relevant to this review are contained in the Social Security Act 1991 and also the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. Section 94 of the Social Security Act 1991 sets out the first requirement for qualification for the DSP, and that is that a person had an impairment at the time they lodged their claim, and in this matter the Respondent accepts and the Tribunal is satisfied that Mr Woods meets this requirement as it is agreed that he had a number of conditions when he lodged his claim on 2 February 2016.

4. The second requirement for DSP is also in s 94 of the Social Security Act 1991 and provides that a person's impairment must rate 20 or more points against the Impairment Tables at the time they lodged their claim.  Impairment Tables can be found in the determination.  To apply the Impairment Tables the condition or impairment must be considered permanent and in the Determination the word "permanent" does not have its usual meaning.  For the purposes of the Determination for a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and have been fully treated and be fully stabilised and likely to last for more than two years.  This is covered in s 6 of the Determination.

5. There is also a requirement that an applicant for DSP must have a continuing inability to work pursuant to s 94(1)(c) of the Social Security Act 1991.

6. Mr Woods gave his reasons for the application as “I don’t think the tribunal had enough information, so I've added another couple of letters”.

7. At first review, the AAT1 concluded Mr Woods' total impairment rating was five points. Therefore, he did not satisfy section 94(1)(b) of the Social Security Act 1991.  However, this Tribunal is not bound by the AAT1 determination and considers matters afresh.  Mr Woods lodged his claim on 2 February 2016.  Therefore the period for consideration is 2 February 2016 to 1 May 2016, and I will be referring to that period as the qualification period.

   ·The Tribunal had before it the following evidence:

   ·The “T Documents” (T1-T23, pp1-211) (Exhibit 1);

   ·Respondent’s Statement of Issues, Facts and Contentions dated 30 June 2017 (Exhibit 2);

   ·Centrelink Medical Certificate dated 15 May 2017 (Exhibit 3);

   ·Report by Clinical Psychologist Anne Walters dated 27 June 2017 (Exhibit 4);

   ·AKMD Report dated 4 September 2017 (Exhibit 5); and

   ·The oral evidence of the Applicant.

8. The Tribunal now considers Mr Woods' conditions.

9. The first condition is that of cardiomyopathy.  At the outset the Tribunal notes that the AAT1 and the Respondent have reached different conclusions with respect to Mr Woods' cardiomyopathy.  The Respondent contends that this condition was fully diagnosed but not fully treated and stabilised during the qualifying period as Mr Woods was yet to undertake recommended treatment.

10. The AAT1 considered that as Mr Woods' cardiologist made no changes to his treatment on review in June/July 2016. His condition could be considered as fully treated within the 13 week period.  Consequently the AAT1 assigned a rating of five points under Table 1.  In looking at these two opposing views, the Tribunal considers the statement by Deputy President Handley in the matter of Re Fanning and Secretary, Department of Social Services [2014] AATA 447 relevant to the consideration of the two positions.

11. Deputy President Handley said:

    The language in clauses 6(5) and 6(6) of the 2011 Determination as forward-looking.  With respect to whether a condition was fully stabilised, for example the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years”.  While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine.  The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter.  For that reason, evidence of treatment and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal's decision.

12. In the present consideration the Tribunal also has regard to the following:

13. Mr Woods told the AAT1 that at the time of his application for DSP he was waiting to see the cardiologist.  He eventually saw Dr Ung at Midland Hospital in June and July of 2016.

14. A report by Dr Ali Kareem Ati dated 22 January 2016 recommended transthoracic echocardiogram, aggressive control of hypertension and coronary artery disease risk factors.  There is no evidence before the Tribunal that these recommendations were implemented in the qualification period.

15. Relevant to the cardiomyopathy condition the JCA report opined:

    Mr Woods' condition is assessed as permanent and fully diagnosed, however there is insufficient evidence to determine if it has been fully treated and stabilised for the purposes of DSP.  At the time of assessment there was insufficient detail regarding treatment initiated to date and Mr Woods was yet to consult with a cardiologist to receive specialist advice.  Mr Woods also reported some improvement in his symptoms indicating that it is reasonable to expect some improvement within the next 24 months.

16. The sleep apnoea condition will be considered shortly, but the Tribunal notes here the recommendation in Dr George Hamor's sleep report dated 29 April 2016 that “CPAP may be trialled in view of a history of cardiomyopathy”.

17. Having carefully weighed all the material and the circumstances relevant to Mr Woods’ cardiomyopathy condition the Tribunal accepts the Respondent's contention that during the qualification period “It cannot be said that the treatment was unlikely to result in significant functional improvement to a level enabling the applicant to undertake work in the next two years”.

18. It follows from all of the above that the Tribunal finds that the cardiomyopathy was fully diagnosed, but not fully treated and stabilised, and therefore cannot be rated under the Impairment Tables.

19. The Tribunal now considers the mental health disorder.

20. A letter from the treating doctor, Dr Arokiasamy, dated 9 August 2016, noted that a clinical psychologist had diagnosed Mr Woods with depression on 27 May 2016.  The letter noted Mr Woods has been receiving counselling and is stable, though still experiencing symptoms.  Dr Arokiasamy opined that this condition was fully diagnosed, treated and stabilised.  However, the Tribunal notes that Ms Monique Armstrong-Burgin, a clinical psychologist, in a report dated 1 June 2016, gave no definitive diagnosis.  She noted that given Mr Woods' vulnerability, support is clearly required.

21. Mr Woods has also provided a report by a clinical psychologist, Ms Anne Walters, dated 27 June 2017.  This report provides a diagnosis of major depressive disorder, and advises that “over the past several months Mr Woods' condition has not stabilised and has continued to deteriorate”.  Ms Walters' report is dated some 17 months after the submission of Mr Woods' DSP claim and does not indicate the date of onset of the mental health condition or Mr Woods' condition during the qualifying period.

22. Impairments associated with mental health functioning are rated under Table 5 of the Impairment Tables.  The introduction to Table 5 states that the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

23. There is no evidence that Mr Woods' condition during the qualifying period had been diagnosed by a psychiatrist or a clinical psychologist.  Therefore the Tribunal is unable to assign an impairment rating.

    Hypothyroidism

24. A report from Dr Arokiasamy dated 9 August 2016, notes the diagnosis of hypothyroidism for which Mr Woods has been on treatment for more than 15 years.  Dr Arokiasamy opined that this condition was fully diagnosed, treated and stabilised.  The Tribunal notes that Centrelink in its assessments regarded this condition as fully diagnosed, but not fully treated and stabilised as there is insufficient medical evidence to indicate the treatment history and the functional impairment. 

25. The Job Capacity Assessment Report dated 18 July 2016 remarked:  “There is insufficient evidence to determine that the condition is fully diagnosed, treated and stabilised for the purposes of DSP”.  The Tribunal agrees, and further notes that there is no evidence before the Tribunal that this condition was causing any impairment during the qualifying period. 

    Sleep apnoea

26. The Respondent accepts that Mr Woods' sleep apnoea was fully diagnosed, but contends that it was not fully treated or stabilised during the qualification period.

27. In this consideration the Tribunal has regard to the report of Dr Hamor, respiratory and sleep medicine physician, dated 29 April 2016, which diagnosed mild obstructive sleep apnoea and recommended a trial of a CPAP machine, and the Job Capacity Assessment Report dated14 June 2016 which notes Mr Woods’ advice that he had not undertaken a trial of a CPAP machine during the qualification period.

28. Before the Tribunal, Mr Woods confirmed that he had not trialled or used such a machine.

29. The Job Capacity Assessment Report further states relevant to this condition:

    Condition is assessed as permanent, fully diagnosed but not fully treated and stabilised for the purposes of Disability Support Pension.  Mr Woods had only recently been diagnosed and had not commenced treatment at the time of the assessment.  Therefore, there was no information available as to the effectiveness and impact of this treatment recommendation.

30. The Tribunal is satisfied that this condition was not fully treated and stabilised during the qualification period, and therefore cannot be rated under the Impairment Tables.  The Tribunal notes that there is no evidence before it that sleep apnoea causes any functional impairment.

31. The Tribunal now considers the conditions of hypertension and hyperlipidaemia.

32. Hypertension was mentioned as a coronary artery disease risk factor in Dr Ati's report dated 22 January 2016. Letters from Dr Arokiasamy dated 9 August 2016 and 4 September 2017 refer to diagnoses of hypertension and hyperlipidaemia and the fact that they have been treated since 2010.  The Respondent regarded these conditions as fully diagnosed and not fully treated and stabilised as there was insufficient medical evidence to indicate the treatment history and any functional impairment.  Having regard to the evidence, the Tribunal agrees. 

33. Having carefully considered all the evidence and the circumstances of this application, the Tribunal concludes that Mr Woods did not satisfy s 94(1)(b) of the Social Security Act 1991 during the qualification period as his impairments did not attract a rating of 20 points or more. Because Mr Woods does not have an impairment rating of 20 points and did not satisfy section 94(1)(b) of the Social Security Act 1991 it is not necessary to consider whether he has a continuing inability to work pursuant to s 94(1)(c) of the Social Security Act 1991.

34. It follows from the above that the decision to reject Mr Woods' claim for DSP was the preferable and correct decision.  The Tribunal affirms the decision under review. 

I certify that the preceding 34 (thirty four) paragraphs of the oral reasons for decision are a true copy of the reasons for the decision herein of Brigadier G Warner, Member

.......(Sgd)..................................

Administrative Assistant

Dated: 9 November 2017

Date of hearing:

Date of Receipt of Request
For Written Reasons

26 September 2017 

12 October 2017

Applicant:

In person  

Representative for the 
Respondent:

Mr A Burgess

Solicitors for the Respondent:

Sparke Helmore Lawyers