Amber-Kelly Butters and Secretary, Department of Social Services

[2015] AATA 406

[2015] AATA406  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2015/0049
Re	Amber-Kelly Butters
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms S Taglieri, Member
Date	9 June 2015
Place	Hobart

The decision under review is affirmed.

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Ms S Taglieri, Member

CATCHWORDS

Disability Support Pension; whether condition(s) including psychological condition result in 20 points of impairment; whether there is continuing inability to work; decision affirmed.

LEGISLATION

Social Security Act 1991

Social Security (Tables for Assessment of Work-related Impairment for DSP) Determination 2011

Social Security Administration Act 1999

CASES

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

REASONS FOR DECISION

Ms S Taglieri, Member

INTRODUCTION

1. Ms Butters applied for a Disability Support Pension (DSP) on 18 June 2014[1] in relation to a number of medical conditions from which she suffers. Her application was refused[2] and her subsequent application to the Social Security Appeals Tribunal to review the Respondent’s decision was unsuccessful.

   [1] T6, pages 20-49 of the T Documents

   [2] T10, pages 80-84 of T Documents

2. This Tribunal has been now asked to review the Respondent’s decision to refuse her application for a DSP. A hearing took place on 14 May 2015, at which Ms Butters gave evidence and documentary evidence was received.

   THE PARTIES’ CONTENTIONS

3. It became clear during the course of the hearing that Ms Butters’ argued that her psychiatric conditions of anxiety and depression attracted 20 impairment points and that being so, she was eligible for DSP at the time she applied.

4. The Respondent disputed the argument made by Ms Butters and further contended that although Ms Butters suffered from a number of permanent medical conditions, she did not attract 20 impairment points for any one condition alone or for all conditions. Further, the Respondent argued that even if Ms Butters’ medical conditions attracted 20 impairment points, she was not eligible for DSP because she did not meet all the requirements of section 94 of the Social Security Act 1991 (SS Act). In particular, that she did not satisfy the requirement of having a continuing inability to work.[3]

   [3] As required by section 94(1)(c)(i) of  the SS Act

   THE APPLICABLE LAW

5. To be entitled to DSP Ms Butters must satisfy all of the requirements of section 94 of the SS Act as apply in her circumstances.  In summary, that means that for her to succeed, the Tribunal must be satisfied that within a 13 week period of her application for DSP (the relevant time) she suffered from permanent medical conditions, which:

   (a)attracted 20 impairment points; and

   (b)resulted in her having a continuing inability to work.

6. In determining if the medical conditions attract 20 points it is necessary to consider and apply the Social Security (Tables for Assessment of Work-related Impairment for DSP) Determination 2011 (“2011 Determination”), which include the Impairment Tables.

7. Whether Ms Butters has demonstrated continuing inability to work, requires application of section 94(2) of the SS Act and also consideration of the Social Security Guide.[4] 

   [4] Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

   THE MEDICAL CONDITIONS AND EVIDENCE ABOUT THEM

8. The evidence established that Ms Butters suffered from 4 medical conditions, being:

   (i)Anxiety and depression;

   (ii)Temperomandibular joint dysfunction;

   (iii)Migraine;

   (iv)Chronic sinusitis.

9. The Respondent conceded that these medical conditions were permanent and caused impairment.

10. The extent of impairment caused by the conditions was in dispute. The evidence from Dr Jackson, Dr Anderson, Dr Naiman and Dr George[5], all largely corroborated Ms Butters’ evidence to the Tribunal about the extent of symptoms and impairment from the medical conditions.

    [5] T7, T5, T4 and T11 respectively

11. Dr Jackson’s report identified anxiety and depression as the condition with most impact on function. His view appeared to be consistent with the views of Dr Anderson and Dr George. He considered that the TMJ condition had significant impact, and conditions of migraine and sinusitis to have minimal or limited impact on function. In a subsequent report dated 18.8.14[6], Dr Jackson expressed the view that the conditions of migraine and sinusitis had significant rather than minimal or limited impact on function.  The Respondent’s Counsel sought to make adverse comment about this and also challenged Ms Butters under cross-examination about the circumstances in which the second report was completed.  The Tribunal is entirely satisfied with the explanation given by Dr Jackson in his letter dated 29 March 2015[7] for the difference of opinions. Further, it is satisfied that no adverse conclusion is warranted against Ms Butters.

    [6] T9, pages 69 to 79

    [7] Exhibit A4

12. There was evidence from the Job Capacity Assessor (JCA)[8] who recommended a rating of 10 points for condition 1 pursuant to Table 5 of the Impairment Tables, and 5 points for condition 2 pursuant to Table 1 of the Impairment Tables. Although the latter appears to be quite generous when the descriptors in Table 1 are considered, it was not challenged by the Respondent or the Applicant, so I accept it.

    [8] T8, page 65 and 66

13. The JCA did not assess impairment resulting from conditions 3 and 4 because at the time of assessment, they had not been identified by medical evidence as warranting any rating; they had only been identified as having limited impact. However, the subsequent reports from Dr Jackson and also Dr Anderson[9] both rated the functional impact of the sinus and migraine conditions to be significant.

    [9] T13, pages 10 to 113 of T Documents

14. Ms Butters’ evidence was that due to all the medical conditions she had not worked for 2 years prior to applying for DSP. During the 2 years, she had been on a temporary illness/incapacity benefit, being a benefit available pursuant to her RBF Superannuation. There was no medical evidence presented to the Tribunal about the medical opinions or reports that had been prepared and taken into account for granting the superannuation benefit.

15. After applying for DSP, Ms Butters participated in a return to work program with her Employer, the Department of Police and Emergency Management. The return to work commenced on 17 June 2014 and ended in about December 2014. During this time, Ms Butters said she attended 13 times and performed 3.4 hours on each occasion. The Tribunal received a signed report from Sergeant Burton dated 11 May 2015 about the return to work. It demonstrated that the intended hours of participation (6.8 hours per week) were probably not actually undertaken, due to illness and incapacity. The evidence does not permit a finding about whether the intended 6.8 hours in any given week was actually undertaken at any stage throughout the period ending in December 2014.  Ms Butters has not participated in any return to work since December 2014, but remains employed by the Department of Police and Emergency Management.

    THE TRIBUNAL’S FINDINGS

16. On the basis of the medical evidence considered by the Tribunal, it is appropriate to consider whether impairment ratings for conditions 3 and 4 are applicable. It appears that Table 1 is the only relevant Table.  The totality of the evidence about conditions 2, 3 and 4 demonstrate that the symptoms and effect of them are all quite similar. I am satisfied that they cause common impairment and as a result, by virtue of Rule 10(5) and 10(6) of the Rules in the 2011 Determination, I cannot assign separate ratings for each condition.  Instead I am required to assign one rating for all 3 of the conditions, of TMJ, migraine and sinusitis.  Evaluating the evidence of the functional impact of the conditions, I cannot escape the conclusion that the functional impact of these conditions also overlap with the impact of the anxiety and depression. This is abundantly clear from Dr Jackson’s clarifying report of 29 March 2015[10] and also the content of Dr Anderson’s report of 17.12.14[11].

    [10] Exhibit A4

    [11] T13

17. The Tribunal is not convinced that it is appropriate to assign more than 5 points pursuant to Table 1 for conditions 2, 3 and 4 above.  To do so would result in double counting and this is not permissible.

18. Ms Butters has argued that the assignment of 10 points under Table 5 for the conditions of anxiety and depression is inadequate. She has sought to persuade the Tribunal that the effects of these conditions meet the descriptors for assigning 20 points under Table 5.  She argues that she meets most of the descriptors.

19. It is not permissible to assign between consecutive ratings.[12] As such, the Tribunal cannot assign or allow 20 points unless the evidence establishes that at the relevant time most of the 6 descriptors for 20 points in Table 5 were satisfied.  The Tribunal accepts Ms Butters’ evidence about the functional impacts of the anxiety and depression from which she suffers, but that does not necessarily mean that it permits the conclusion that the impact is “severe”.

    [12] Rule 11 of the 2011 Determination

20. Rule 8 of the 2011 Determination, does not permit the Tribunal to take self-reported symptoms and descriptions by an applicant into account, unless corroborated and the corroboration required is identified in the Introduction to Table 5. I consider that Dr Jackson and Dr George’s reports go some way to corroborating some of the impacts of  anxiety and depression. In particular I am satisfied that they corroborate Ms Butters in relation to subparagraph (d) and (e) of the descriptors in Table 5 for 20 points.

21. In relation to the descriptors in (a) and (f), the evidence of both doctors does not support Ms Butters claims. They considered that at the relevant time, she was able to do some part-time work or training.  She in fact has done so during the return to work since her application. I am mindful that she was not at work for 2 years while in receipt of an RBF benefit, but the evidence does not allow a conclusion about the reasons for that. Even if it did permit this, the fact that she has undertaken some work within the 13 weeks from making her application for DSP demonstrates that subparagraph (f) is not satisfied. Ms Butters is capable of self-care and has lived independently except for a period when her son and his girlfriend lived with her.  They did provide some support, but it was apparent that they were not living there for that reason, but instead were there temporarily for some other reason.  There is no medical evidence to the effect that she is unable to self-care or live independently and subparagraph (a) is not satisfied. Ms Butters is not motivated to self-care but she is able to do so and the Tribunal does not regard her as having severe difficulty in this regard.

22. The medical evidence is silent about the descriptors to which subparagraphs (b) and (c) relate.  Ms Butters sought to introduce signed letters from Mrs Wendy Perrin and her mother, Mrs Shirley Porter, by way of corroboration of her evidence.  While the Tribunal read those letters it did not receive them into evidence because they were objected to by the Respondent on the basis that they had only been served on the Respondent a few days prior to the hearing and the contents of them had not been tested under cross-examination. Further, because Counsel for the Respondent did not challenge the veracity or accuracy of Ms Butters evidence as to the descriptors in subparagraph (b) and (c), they did not appear relevant to provide further assistance to the Tribunal regarding a matter in dispute.

23. In any event, Mrs Porter’s letter did not address the descriptors in subparagraphs (b) and (c), but generally referred to Ms Butters’ declining health over the last 5 years. It is so general not to be of any assistance to the Tribunal, as the existence of the medical conditions and their permanency were not in issue.  The letter from Mrs Perrin did corroborate Ms Butters’ evidence about the matters in subparagraphs (b) and (c), but as the evidence about these was uncontentious, it did not further assist.

24. The Tribunal is satisfied as to the descriptor in subparagraph (c) but not (b) when all the evidence is considered and the Rules applied.

25. Ms Butters has satisfied the Tribunal of 3 of the 6 descriptors for the assignment of 20 impairment points. As it accepts the submission that 20 points can only apply for Table 5 if 4 of the 6 descriptors are satisfied (being most), the Tribunal is not satisfied that Ms Butters suffers severe functional impact and so 20 points should not be attributed. For mental health function, the Tribunal applies 10 impairment points.

26. The evidence suggests that there may have been some deterioration in Ms Butter’s condition since June 2014, but the Tribunal cannot consider the present state of impairment as it is outside the qualification period.[13]

    [13] Section 41, 42 and Schedule 2, clause 3 of the Social Security Administration Act 1999

27. The Tribunal finds that the total points applicable to the permanent medical conditions is 15.

    CONCLUSION

28. Unfortunately for Ms Butters, the Tribunal is not satisfied that at the relevant time of her application, the permanent medical conditions resulted in impairment allowing the allocation of 20 points. That being the case, she does not satisfy the mandatory requirement of section 94(1)(b) of the Act.

29. This conclusion means that Ms Butters’ application is dismissed.  The Tribunal notes that even if it were satisfied that 20 points ought to be allocated for the psychological conditions at the relevant time, Ms Butters would not need to satisfy the requirement for participation in a Program of Support. This still means her application would fail because the requirement of showing continuing inability still needs to be satisfied. At the time of her application for DSP, Ms Butters was participating in a return to work program. The intended participation of 6.8 hours per week may not have been fulfilled, but it is still available to her on the evidence the Tribunal received.  As 2 years have not elapsed since her application for DSP was made on 18 June 2014, the Tribunal cannot be satisfied that she is unable to do 15 hours of work or training within 2 years of her application.  Indeed, the medical evidence of Dr Jacob and Dr Jackson suggest otherwise, by referring to part-time work being suitable and the JCA expressed the view on both occasions of assessment that within 2 years there was capacity for 15 to 22 hours.[14]

    [14] T documents page 67 and 100

30. The decision under review is affirmed.

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

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Administrative Assistant

Dated  9 June 2015    

Date of hearing	14 May 2015
Applicant	Ms Amber-Kelly Butters (self-represented)
Solicitor for the Respondent	Mr Brian Sparkes, Program Litigation and Review Branch