Anahit Mosesian and Secretary, Department of Social Services

[2015] AATA 251

[2015] AATA 251  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/1800
Re	Anahit Mosesian
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	24 April 2015
Place	Sydney

The decision under review is affirmed.

...............................[sgd].........................................

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether the applicant’s impairment is of 20 points or more under the Impairment Tables – whether the applicant has a continuing inability to work – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Sch 2 cl 4

CASES

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

Re Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

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

REASONS FOR DECISION

Professor R McCallum AO, Member

24 April 2015

BACKGROUND

1. The Applicant, Mrs Anahit Mosesian, applied for Disability Support Pension (DSP) on 28 February 2013.

2. On 21 February 2013, Dr Ashishkumar Shah prepared a report in respect of the Applicant’s claim for DSP. Dr Shah reported that the Applicant has the following impairments: severe osteoarthritis of the back, knee and shoulder and osteoporosis which was associated with back pain. Dr Shah also stated that the Applicant has hypertension, hypothyroid, GORD, Achilles tendonitis, depression, rotator cuff tear, fatty liver and diverticulitis which are generally well managed and which cause the Applicant minimal or limited impact on her ability to function.

3. On 14 April 2013 a Job Capacity Assessment (JCA) report was completed which stated that the Applicant had impairments, but that they warranted nil points under the Impairment Tables.

4. The Applicant’s claim for DSP was rejected by Centrelink on 25 June 2013, and an authorised review officer (ARO) affirmed the original decision on 2 December 2013.

5. The Applicant appealed to the Social Security Appeals Tribunal (SSAT) and this appeal was heard on 5 March 2014 with the SSAT’s decision being posted on 12 March 2014. The SSAT held (at paragraph 3) that the Applicant “... suffers from osteoarthritis of back, shoulders and both knees, osteoporosis, hypertension, hypothyroidism, depression, Achilles tendinitis [sic], ... gastro-oesophageal reflux disorder, rotator cuff tear, diverticulitis and fatty liver.”

6. The SSAT held (at paragraph 12) that the Applicant’s right shoulder/upper arm condition was fully diagnosed, treated and stabilised, and that it had a moderate impact, and accordingly assessed this condition at 10 points under Table 2 of the Impairment Tables. The SSAT further held (at paragraph 15) that her osteoporosis warranted an assessment of 10 points under Table 1, owing to the impact of this impairment on functioning. The SSAT also held (at paragraph 13) that the Applicant’s low back pain due to degenerative changes in the thoracolumbar spine was fully diagnosed, treated and stabilised and that it had a mild impact and assessed it at 5 points under Table 4 of the Impairment Tables.

7. On 10 April 2014, the Applicant applied to this Tribunal for review of the SSAT’s decision, and subsequently provided further medical evidence.

8. On 10 June 2014, a further JCA was undertaken, having regard to the further medical evidence. This JCA report is dated 17 June 2014.

9. The job capacity assessor, a registered occupational therapist, was of the view that the Applicant’s conditions of osteoporosis, hypertension, hypothyroidism, gout and osteoarthritis of the upper limbs, lower limbs and spine were fully diagnosed, treated and stabilised at the date of claim. The assessor recommended a total rating of 25 points under the Impairment Tables. The recommended ratings were: 10 points under Table 1 for her osteoporosis; nil points under Table 1 for her hypertension; nil points under Table 1 for her hypothyroidism; nil points under Table 1 for gout, 5 points under Table 2 for her osteoarthritis of the upper limbs; 5 points under Table 3 for her osteoarthritis of the lower limbs; 5 points under Table 4 for her osteoarthritis of the spine.

10. On 21 July 2014 the Applicant lodged a further medical report prepared by Dr A J Sanki, general surgeon.

11. On 9 October 2014, a further JCA was conducted, by way of a file assessment, by a registered psychologist with a contribution by an an accredited exercise physiologist, in response to Dr Sanki’s report. The findings of the previous JCA report dated 17 June 2014 remained unchanged.

    THE LEGISLATION

12. The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

13. The criteria for DSP are set forth in section 94 of the SS Act. In the Applicant’s circumstances, section 94(1) relevantly provides:

    (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;

    ...

    (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)   in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)   in all cases—either:

    (i)    the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)   if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

    ...

    (3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

14. Put simply, I must be satisfied, first, that the Applicant has one or more physical, intellectual or psychiatric impairments. Second, that the Applicant’s impairment is rated at least 20 points under the Impairment Tables. Finally, I must be satisfied, that the Applicant has a continuing inability to work. If she does not have a severe impairment, as defined by the SS Act, one of the requirements for a continuing inability to work is active participation in a program of support.

    The 13 week qualifying period

15. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. Clause 4(1) provides:

    If:

    (a)   a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)   the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)   assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)   the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

16. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine the Applicant’s eligibility for DSP in the 13 week period commencing on the day on which the Applicant applied for DSP, and concluding 13 weeks after that day. Therefore, I must determine whether the Applicant qualified for DSP between 28 February 2013 and 30 May 2013.

17. The date of this Tribunal’s hearing was 10 March 2015 which is just over two years since the Applicant claimed DSP. In these circumstances and given the material before me, I take this opportunity to refer to the relevant case law on the 13 week qualifying period.

18. In Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:

    In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

19. In Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, Deputy President Handley said at [31]-[33]:

    [31] In my view, in the case of DSP, it is implicit in clause 4 of Sch 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with[in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.

    [32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except in so far as it may cast light on the position at the relevant time”.

    [33] … 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.

20. Therefore, in determining the eligibility of the Applicant to receive a DSP I am confined to examining the Applicant’s impairments during the 13 week qualifying period.

    THE CONCESSIONS BY THE RESPONDENT

21. In paragraph 23 of the Secretary’s Statement of Facts and Contentions, the Respondent made the following concession:

    23. The Secretary accepts that the applicant suffers from the following conditions: osteoarthritis of the knees, shoulder and back, osteoporosis, GORD, Diverticulitis, hypertension, hypothyroidism, gout, fatty liver, rotatory cuff tear and depression and therefore satisfies section 94(1 )(a) of the Act.

22. During the hearing, the Applicant and the Respondent accepted that the Applicant’s osteoarthritis of the upper limbs be assessed at 5 points under Table 2, and for her osteoarthritis of the lower limbs to be assessed at 5 points under Table 3 of the Impairment Tables.

    THE ISSUES BEFORE THIS TRIBUNAL

23. The primary issue which I am required to decide is whether pursuant to section 94(1)(b) of the SS Act, the Applicant’s impairments may be assigned a rating of 20 points or more under the Impairment Tables. If I find that any of the Applicant’s impairments are assessed at 20 points or more under a single Impairment Table, then the Applicant is considered under the SS Act to have a severe impairment. If the Applicant’s impairments are assessed at 20 points under the Impairment Tables, I am also required to further decide whether the Applicant has a continuing inability to work pursuant to section 94(1)(c)(i) of the SS Act and related provisions.

    THE IMPAIRMENT TABLES

24. Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of the Applicant are worth 20 points under the Impairment Tables. This requires a few words of explanation. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (The Determination). The Determination also contains the rules for the application of the Impairment Tables.

25. In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:

    [5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

    [6] The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

26. Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.

27. Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.

28. With respect to the matter before me, section 10 of the Determination is important. Sub-section 10(5) states:

    (5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

29. Subsection 10(6) then provides:

    (6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection  10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

    THE EVIDENCE OF THE APPLICANT

30. The Applicant gave sworn evidence and I found her to be a truthful witness.

31. The Applicant recounted that she had immigrated to Australia in 1981. She married and raised three children. In 1998, she established her own cleaning business. In 2007, the Applicant took up full time employment as a machinist. Some years later, she reduced her employment to three days per week, for eight hours per day. In early February 2013 the Applicant ceased employment and applied for DSP on 28 February 2013. She is currently in receipt of newstart allowance.

32. The Applicant said that her health and especially her back condition, has deteriorated since she made her claim for DSP in February 2013. The Applicant said that in 2013, she used a walking stick. In 2014, the Applicant’s daughter purchased a walking frame which the Applicant uses. The Applicant came with the walking frame to the hearing.

33. During the hearing which lasted for 1 hour and 40 minutes, the Applicant stood up on a number of occasions to lessen her uncomfortableness in sitting.

34. The Applicant said that when shopping she uses a shopping trolley to hold onto when walking. She is assisted in shopping either by one of her children or by her sister.

35. The Applicant stated that at some time before July 2013, she fell outside a doctor’s surgery and fractured her shin. The Applicant does suffer from osteoporosis. The Applicant said that sometimes she showers by herself, but on other occasions when she is feeling dizzy because of her medications, she is assisted in the shower by her daughter or by her sister.

    THE DOCUMENTARY EVIDENCE

36. The following documents are before this Tribunal: the Secretary’s Statement of Facts and Contentions; a report from Dr Ashishkumar Shah dated 5 February 2015; the documents prepared by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) which are known as the T documents; and the supplementary T documents.

    CONSIDERATION

37. The first matter which I am required to decide, is whether pursuant to section 94(1)(b) of the SS Act, the Applicant’s impairments may be assigned a rating of 20 points or more under the Impairment Tables. I must assess the Applicant’s impairments under the Impairment Tables during the claim period, that is from 28 February 2013 to 30 May 2013.

38. From the evidence of the Applicant, and having regard to the written JCA reports and the reports of the doctors, I find that the Applicant’s health has deteriorated since February 2013. I note that immediately before making her claim, the Applicant worked as a machinist for three days a week, eight hours per day.

39. During the hearing, the Applicant and the Respondent accepted that the Applicant’s osteoarthritis of the upper limbs should be assessed at 5 points under Table 2, and that her osteoarthritis of the lower limbs should be assessed at 5 points under Table 3 of the Impairment Tables. Accordingly, I assess the Applicant’s upper and lower limb impairments at 5 points under Table 2 and 5 points under Table 3.

40. The Applicant has multiple conditions and impairments, and therefore having regard to section 10 of the Determination, I must determine which tables apply to the Applicant’s remaining impairments, while not engaging in any double counting.

41. The Applicant argued that the Applicant’s osteoporosis, osteoarthritis and lower back pain should be assessed under Table 1 of the Impairment Tables which is titled “Functions requiring Physical Exertion and Stamina”. The Respondent stated that these conditions should come under table 4 which is titled “Spinal function”.

1. After examining the tables, I find that the Applicant’s osteoporosis should be assessed under Table 1. The SSAT assessed the Applicant’s osteoporosis at 10 points under Table 1. The JCA report dated 17 June 2014, also assessed the Applicant’s osteoporosis at 10 points under Table 1. I agree with these two assessments, and accordingly I find that the Applicant’s osteoporosis is assessed at 10 points under Table 1.

2. In relation to the Applicant’s osteoarthritis and lower back pain, I find that to avoid double counting they should be assessed under Table 4.

3. On the evidence before me, I find that the Applicant’s osteoarthritis and lower spine impairments, during the claim period, had a mild affect upon the Applicant’s functioning. Accordingly, I assess these impairments at 5 points under Table 4.

4. For completeness, If I had assessed the Applicant’s osteoporosis, osteoarthritis and lower spine impairments under Table 1, I would have assessed these impairments as having a moderate affect upon the Applicant, thus warranting an assessment of 10 points under this table.

5. In relation to the Applicant’s other impairments of GORD, diverticulitis, hypertension, hypothyroidism, gout, and fatty liver, I find them to be well managed and warranting ratings of nil points under the Impairment Tables.

6. In relation to the Applicant’s depression, I find there to be insufficient evidence from which to determine that during the claim period it was fully diagnosed, treated and stabilised.

7. I therefore find that the Applicant’s impairments to be assessed at 25 points under the Impairment Tables.

8. The second matter which I am required to decide is whether the Applicant has a severe impairment. I find that as none of the Applicant’s impairments have been assessed at 20 points under a single table of the Impairment Tables, the Applicant does not have a severe impairment.

9. Finally, I am required to decide whether the Applicant has a continuing inability to work within the meaning of section 94(1)(c)(i) and various attendant provisions of the SS Act. From the evidence, the Applicant did not actively engage in a program of support at or before the date of her claim pursuant to section 94(2)(aa) of the SS Act. The SSAT held that in the Applicant’s circumstances, none of the exceptions apply. I agree, and accordingly find that the Applicant did not have a continuing inability to work during the claim period because the Applicant had not actively engaged in a program of support.

   DECISION

10. The decision under review is affirmed.

I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

.................................[sgd].......................................

Associate

Dated 24 April 2015

Date(s) of hearing	10 March 2015
Solicitors for the Applicant	Juris Australia Lawyers
Solicitors for the Respondent	Department of Human Services