Editors --- "Disability support pension: reasonable treatment; whether impairment rating possible" [2008] SocSecRpr 14; (2008) 10(1) Social Security Reporter, Article 14

• CARDENZANA and SECRETARY TO THE DEWR
• The issue
• Background
• The law
• Discussion
• Formal decision

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Disability support pension: reasonable treatment; whether impairment rating possible

CARDENZANA and SECRETARY TO THE DEWR

(2007/1910)

Decided: 1st November 2007 by B.W. Davis

The issue

The principal questions in this matter were which of Cardenzana’s claimed disabilities should be considered for disability support pension (DSP)purposes, and whether his refusal to adopt recommended treatment regimes in respect of his health conditions, were outside the ‘reasonable treatment ‘requirements of the legislation.

Background

Cardenzana was a 48-year-old male who had worked primarily as a carpenter in the building industry. He was granted DSP in May 1985 on the basis of a single disability, namely asthma. In May 2005 Cardenzana was medically reviewed, his treating doctor noting his conditions as chronic asthma, spondylosis of the spine, with wrist and kneepan. However, a Health Services Australia medical assessment determined that treatment was needed to stabilise Cardenzana’s asthma, and so no impairment rating was assigned in respect of this condition, similarly that treatment of his back pain was required before a rating could be given, and that his wrist and knee pain caused only minor interference to functioning and warranted a nil impairment rating. On this basis in September 2005 Cardenzana’s DSP was cancelled, a decision affirmed by the SSAT in February 2006, although at that time the SSAT rated Cardenzana’s asthma at 10 points under the Impairment Tables.

Evidence was given that, in addition to his other health conditions, Cardenzana suffered a motor cycle accident in 2001 and now suffered from sleep apnoea. Cardenzana acknowledged his smoking and alcohol intake, but contended that ‘they provided some relief and abandoning them would not improve [my] situation’ (Reasons, para 15). He stated that constant pain from spondylosis meant that he could not sit, bend or stand for long periods, and he was not motivated to study or retrain. He contended that having been unemployed for many years it would be difficult for him to find any employment.

The law

The qualifications for DSP are contained in s.94(1) of the Social Security Act 1991 (the Act)which provides that to be eligible a person’s identified disabilities must be rated at 20 points or more under the Impairment Tables (s.94(1)(b)), and that the person have an ongoing inability to work (s.94(1)(c)). To be assigned an impairment rating, a condition must be ‘fully diagnosed, treated and stabilised’ (Schedule 1B, clause 4). To assess whether a condition has been fully diagnosed, treated and stabilised, it is necessary to consider -

‘what treatment or rehabilitation has occurred;

whether treatment is still continuing or is planned in the near future;

whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.’

(Schedule 1B, clause 4 of the Act).

Discussion

The Tribunal noted that Cardenzana had refused to give up smoking and to reduce his alcohol intake, despite medical advice that to do so would be likely to improve his asthma. The Tribunal reviewed relevant case law and said that:

In each case the Tribunal rejected claims of permanent disability because the applicant had failed to undertake recommended treatments and had not used their own best endeavours to improve their situation. In Coates and SDEWR [2006] AATA 938 the judgement made it clear Parliament had only intended DSP to be paid when disabilities had been fully investigated, treated and stabilised to the point permanence was clearly demonstrated. (Reasons,para.29)

Cardenzana had failed to meet the ‘reasonable treatment’ criteria required in the Act, so that his asthma condition could not be regarded as permanent. As such, it could not be assigned an impairment rating and so could not be considered for DSP purposes.

In relation to Cardenzana’s back pain, the Tribunal noted the description of the impact of this condition on Cardenzana’s daily activities but that he had not sought rehabilitation nor any specialist referral or physiotherapy to assist with this condition. In these circumstances the Tribunal determined that this condition could not be regarded as diagnosed, treated or stabilised, and that therefore an impairment rating could not be assigned. The Tribunal reached the same conclusion in respect of Cardenzana’s neck and shoulder pain, and his knee and wrist pain, noting that treatment for these conditions had been suggested but had not been taken up. Thus, again, no impairment rating could be assigned in respect of these conditions.

Formal decision

The Tribunal affirmed the decision under review.

[P.A.S.]