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

[2021] AATA 2113

Anderson and Secretary, Department of Social Services (Social services second review) [2021] AATA 2113 (3 May 2021)

Division:GENERAL DIVISION

File Number(s):      2020/3569

Re:Karen Anderson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member M Kennedy

Date:3 May 2021

Place:Adelaide

The Tribunal affirms the decision under review.

.........................[Sgnd]...............................................

Member M Kennedy

Catchwords

SOCIAL SECURITY – disability support pension – whether an impairment rating of 20 points or more existed under Impairment Table 1 – ‘without assistance’ – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Cases

Summers v Secretary, Department of Social Services [2014] AATA 165

Doherty v Secretary, Department of Social Services [2020] AATA 3311

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Chronic Fatigue Syndrome: Clinical Practice Guidelines issued by the Royal Australasian College of Physicians (2002)

Guides to Social Policy Law: Social Security Guide – topic 3.6.3.05

REASONS FOR DECISION

Member M Kennedy

1. Ms Anderson applied for Disability Support Pension (DSP) on 4 January 2019.  On 15 February 2019, the Department rejected the claim on the grounds that Ms Anderson did not attract a sufficient impairment rating to qualify.

2. Ms Anderson applied for review, and the Department affirmed its decision on 3 March 2020.  Ms Anderson applied for review of that decision in the Tribunal (Social Services and Child Support Division) on 10 March 2020.

3. The Tribunal decided to affirm the Department’s decision.  In doing so, the Tribunal member decided that Ms Anderson’s medical condition of chronic fatigue syndrome (CFS) was fully diagnosed, treated and stabilised and attracted 10 points under Table 1 of the Impairment Tables.  The Tribunal further found that Ms Anderson’s remaining medical conditions of Post Traumatic Stress Disorder (PTSD), lower back pain and irritable bowel syndrome (IBS) were not fully diagnosed, treated and stabilised, and were therefore not amenable to be assigned points under the Impairment Tables.

4. The Tribunal decided that Ms Anderson did not meet the criterion for disability support pension that requires her to have at least 20 points under the Impairment Tables, and affirmed the decision to refuse to grant DSP.

5. Ms Anderson applied to the General Division of the Tribunal for review of that decision on 13 May 2020.

   CONSIDERATION

6. Medical qualification for DSP is provided for in section 94 of the Social Security Act 1991 (the Act).  It requires, among other matters, that a person have a physical, intellectual or psychiatric impairment, and that the person’s impairment is of 20 points or more under the Impairment Tables.

7. The Impairment Tables referred to in section 94 are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination of 2011 made under section 26 of the Act. The Impairment Tables include rules as to how they are to be applied.

8. One such rule as to the application of the Impairment Tables is that an impairment rating can only be assigned if a person’s condition is ‘permanent’.  That term is further defined to  mean that the condition has been ‘fully diagnosed’ by an appropriately qualified medical practitioner, has been ‘fully treated’ and ‘fully stabilised’.  Instruction as to assessing each of those terms is provided for in the rules for applying the Impairment Tables.

   Chronic Fatigue Syndrome

9. The Secretary accepts that Ms Anderson has CFS and the condition is permanent.  The issue, as the Secretary contends, is the functional impairment caused by the condition and how this is to be applied under the Impairment Tables.

10. For completeness, having regard to the documentary evidence of medical opinion available to the Tribunal in the Tribunal papers, I agree that Ms Anderson has indeed been diagnosed with CFS and the condition is fully treated and stable.  Dr Mansfield (T7) certified on 17 November 2017 that the condition had a date of onset in 1985 and certified that in his opinion the condition was likely to be permanent and likely to persist for 2 years or more.  On 24 December 2018, Dr Masters confirmed that Ms Anderson had presented with fatigue after the birth of her first child in 1985 and the first diagnosis of the condition was in 2012 (T12).

11. A physiotherapist and an occupational therapist undertaking DSP Medical Eligibility Assessments (T16) and (T20) observed that Ms Anderson had not accessed specialist treatment for the condition, and considered the condition was not fully treated or stabilised because  such intervention could result in significant functional improvement.  However, in subsequent medical certificates Drs Masters and Mansfield have outlined past current and planned treatments that align with the Chronic Fatigue Syndrome Clinical Practice Guidelines issued by the Royal Australasian College of Physicians (R1).  The Secretary’s accepts that the demonstrated management of the condition accords with the Clinical Practice Guidelines, and it is unlikely that further reasonable treatment would result in significant functional improvement.  The Secretary’s position in this regard is appropriate and I agree.

12. As to functional incapacity, I turn to consider the terms of Table 1 of the Impairment Tables that deal with functions requiring physical exertion and stamina.

13. To attract 20 points under that Table the following functional impact must be established:

20

There is a severe functional impact on activities requiring physical exertion or stamina.

 (1)        The person:

 (a)        usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

 (i)         walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

 (ii)         walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

 (iii)        use public transport without assistance; or

 (iv)        perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

 (b)        has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

1. In assessing the evidence against the provisions of the Table, I note that I must not assign a rating between consecutive impairment ratings, and must assign the lower of two ratings if I consider the impairment falls between two impairment ratings. I should compare the descriptors for each impairment rating in a Table to determine which impairment rating should be applied: Rule 11.

2. Ms Anderson gave clear and concise evidence in response to questions asked of her by the Respondent’s counsel addressing the functional impact and activities addressed in Table 1.  Ms Anderson told me that she is able to walk around a shopping centre without assistance (in the sense of human assistance), is able to walk from the car park to the shopping centre without assistance, and, in relation to light day to day household activities she explained that she is unable to complete all housekeeping activities in one go, but will typically fold laundry as she takes it off the line.  Ms Anderson described housework taking a lot of effort,  so she is unable to complete it all in one attempt. 

3. In relation to using public transport, Ms Anderson explained that she would not need assistance to get on or off the bus, but she finds using public transport causes exertion and she does not use it.  She chooses not to travel into the city.

4. Ms Anderson described parking as close as she can to the shopping centre entrance, and using the trolley for support.

5. I have considered the meaning of the term ‘assistance’ as used in Table 1.  The Secretary contends, consistently with Departmental policy in the Social Security Guide, that the term ‘assistance’ means assistance from another person, and not assistance from a device or an aid.  I have had regard to the decision in Summers v Secretary, Department of Social Services [2014] AATA 165 at [16] – [17] and respectfully agree with the conclusion that ‘assistance’ refers to assistance from a person and not from an object or physical aid. While I have noted Ms Anderson’s evidence that she relies on a trolley to support her when mobilising around a shopping centre, I find that she does not require the assistance of another person and so in that sense she can walk around a shopping centre without assistance.

6. I have considered carefully the approach of the Tribunal in Doherty v Secretary, Department of Social Services [2020] AATA 3311, which considered the term in the context of Table 3 and reached the opposite conclusion. I adopt the approach in Summers because it draws upon the specific directions at Rule 9 of the Impairment Tables, which requires a  person’s impairment to be assessed when the person is using or wearing any aids, equipment or assistive technology in assessing a person’s impairment, and construes the term in that context.    

7. I observed that Ms Anderson had prepared extensively for the proceedings, including submitting lengthy and detailed submissions incorporating the results of her own substantial research about CFS.  I observed that preparing these submissions for the Tribunal must have taken extensive work, and asked Ms Anderson how this was done, by reference to item 1(b) in the 20 point rating under Table 1.  Ms Anderson indicated it took a very long time to prepare, and that she would not have been able to complete three hours of such research and writing in one go, as her head and eyes would feel very heavy and she would be required to lie down.  I accept she would have difficulty sustaining clerical tasks of a sedentary or stationary nature for a continuous shift of three hours.

8. I accept the submission of the respondent that in order to attract 20 points, the evidence must demonstrate that an applicant is unable to perform one of the identified tasks in item 1(a) and (cumulatively) have difficulty sustaining the tasks identified in item 1(b). 

9. I find that Ms Anderson’s evidence about the functional impact of CFS does not support the assignment of 20 points.  Specifically, Ms Anderson can walk around a shopping centre without assistance, can walk from the carpark to the shopping centre without assistance, can use public transport without assistance (albeit she chooses not to given the exertion it requires) and can perform light day to day activities (albeit she does not complete all household chores in a single attempt).  It follows that 20 points cannot be assigned to the functional impact of CFS under Table 1.

10. I consider that 10 points represents an apt description of the functional impact of the condition on Ms Anderson, and I find there is a moderate functional impact on activities requiring physical exertion or stamina in order to assign 10 points under Table 1:

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

 (1)        The person:

 (a)        experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

 (i)         is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

 (ii)         has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

 (b)        is able to:

 (i)         use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)         perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

1. I have considered carefully whether further points should be assigned to the functional impact of CFS on Ms Anderson by reference to another table of the Impairment Tables.  In this regard, the rules provide for single conditions causing multiple impairments, and it is permissible to assign additional points if I were satisfied that the impairment was attributable to CFS (being a condition that is fully diagnosed, treated and stable), provided I do not assign a rating for the same impairment under more than one Table.

2. Ms Anderson contends that in some medical circles, it is now considered that many of her symptoms classed under IBS are actually part of or an accentuation of the CFS. Ms Anderson’s extract of research into this area also contends that Leaky Gut Syndrome is common in CFS. 

3. I note however that in the Clinical Practice Guidelines, gastroenterological symptoms are not identified amongst the diagnostic criteria for CFS, although the Guidelines do recognise that there is a degree of overlap amongst conditions (including CFS and IBS) that are referred to as ‘prolonged fatigue states’.  The Clinical Practice Guidelines indicate (at S29) that food intolerances for CFS patients justify dietary investigation under the supervision of appropriately qualified physicians or dieticians.

4. I have reviewed the medical evidence provided in relation to Ms Anderson’s diagnosis, and observe that CFS and IBS are typically identified as separate medical conditions.  I have not identified any discussion of Ms Anderson’s CFS from medical practitioners that have identified gastroenterological  impact as a symptom of CFS (as opposed to IBS).  Medical certificates identifying CFS do not identify gastroenterological functional impact as a symptom in respect of Ms Anderson.

5. In light of this evidence, while I have followed Ms Anderson’s reports of her own research carefully, I am not satisfied to say that the gastroenterological symptoms Ms Anderson has reported form part of the functional impact of her CFS.  I have not assigned any further points to the functional incapacity Ms Anderson faces from her CFS.  I assign 10 points.

   IBS / Leaky Gut Syndrome

6. I have considered Ms Anderson’s claims regarding IBS / leaky gut syndrome as a separate gastroenterological condition.  There is sufficient reference to diagnosis of the condition in the medical certificates before me for me to be satisfied that the condition has been diagnosed, and has generally been referred to as ‘IBS’.

7. In her evidence about her gastroenterological condition(s) and symptoms, Ms Anderson told me that she had the condition for at least 20 years, but had not consulted with a specialist gastroenterologist.  She told me that her treating GP had refused to refer her to a specialist. 

8. I have taken into account the correspondence from Dr Masters of 25 August 2020 (A9).  Dr Masters states that Ms Anderson has suffered from IBS symptoms for many years, and the diagnosis does not require any specialised testing or investigation for diagnosis.  The Patient Health Summary documents provided by Ms Anderson of notes made during medical consultations contain only the briefest of references to IBS (for example on 18 September 2013: “? Irritable bowel syndrome” is recorded amongst other aspects of the consultation (A8).

9. Ms Anderson has produced evidence demonstrating that she has tested positive for the coeliac gene, and described how she has managed her gastroenterological symptoms (A9).

10. The respondent contends that in the absence of medical evidence of specialist review concerning Ms Anderson’s gastroenterological symptoms I ought not be satisfied that the condition is fully diagnosed, treated and stabilised.

11. The rules for the Impairment Tables provide that in deciding whether a condition is fully diagnosed and fully treated, I must consider whether the condition has been fully diagnosed by an appropriately qualified medical practitioner and what treatment or rehabilitation has occurred in relation to the condition: Item 6(4) and 6(5). 

12. On balance, I accept the respondent’s contention that the symptoms described by Ms Anderson ought to be the subject of a specialist gastroenterologist’s assessment on review, and the evidence demonstrates insufficient specific treatment for the condition to be considered fully diagnoses, treated and stabilised.  I am not satisfied the conditions of IBS or leaky gut syndrome have been fully treated, diagnosed and stabilised and therefore the condition is not amenable to attracting points under the Impairment Tables.

    PTSD

13. Ms Anderson experienced a traumatic outcome arising out of abdominal surgery she underwent in 2011.  Her GPs (Drs Masters and Mansfield) have diagnosed her with PTSD (T7, T13 and T29).  Medical certificates indicate the prognosis of the condition is uncertain, and Dr Mansfield reported that Ms Anderson was seeing a psychologist under a mental health plan as at December 2018.

14. Ms Anderson was referred to a Consultant Psychiatrist (Dr Singh) who saw her in May 2018, and a detailed report of Dr Singh is before the Tribunal (T10).  After recounting an extensive history and examination, Dr Singh did not diagnose any acute psychiatric disorder, identified no clinical indication for further tests and observed Ms Anderson was not affected by any disabling or significant anxiety or mood symptoms.  Specifically in relation to PTSD, Dr Singh observed that Ms Anderson had denied any PTSD symptoms.

15. When cross examined about this report, Ms Anderson denied that she had said she did not have PTSD symptoms and said Dr Singh had not asked her about it.  Ms Anderson agreed this was very unusual given that was the purpose of the consultation.

16. For functional impairment caused by mental health function, the introduction to Table 5 – Mental Health Function specifically and expressly requires that the diagnosis of a condition must be made by  a qualified medical practitioner  with evidence of a clinical psychologist if the diagnosis has not been made by a psychiatrist. 

17. While I note that Ms Anderson’s GPs have diagnosed the condition, this diagnosis has not been corroborated by a clinical psychologist, and has been contradicted by a consultant psychiatrist.

18. Given the opinion expressed by Dr Singh, I am not satisfied that Ms Anderson’s condition of PTSD has been fully diagnosed.  While I understand Ms Anderson’s concerns regarding the records made of the history she gave to Dr Singh in the context of the purpose of her referral, I have no cogent basis to disregard the opinion expressed by the consultant psychiatrist about Ms Anderson’s mental health conditions.  I am not satisfied Ms Anderson’s condition of PTSD has been fully diagnosed, on the basis of the opinion expressed by Dr Singh. To the extent that Dr Singh’s opinion is contradicted by other medical practitioners, I prefer the opinion of Dr Singh due to his medical speciality as a consultant psychiatrist.

19. As I am not satisfied the condition of PTSD is fully diagnosed, the condition does not attract any points under the Impairment Tables.

    Lower back pain

20. Ms Anderson described the onset of lower back pain in the early 1980s, when she was about 23.  She accepted that there had been no specific review of her lower back pain prior to a few months ago, and accepted there had essentially been a gap in any management or review of the condition for some 35 to 40 years.

21. Ms Anderson explained that she had not sought review or treatment for this condition because she felt she could manage it herself, and had heard that back surgery often made things worse.  Ms Anderson mentioned that in the past she has treated her back condition herself through yoga.

22. Given this history, the documentary medical evidence available to the Tribunal at T29 or T7 (medical certificates) does not mention lower back pain.  A broken vertebra is mentioned by the applicant at T15, and Dr Mansfield mentions an additional problem of defective joints in the lumbar spine that are probably congenital in his letter of 1 December 2017 at T8. 

1. The records of medical consultations in the Patient Health Summary documents indicate that Ms Anderson sought investigation for her lower back pain in October, November and December 2018, but it is not clear that any referral, investigation or treatment was offered at that time.  On 29 June 2020 a diagnosis of spondylolisthesis is recorded following medical imaging after Ms Anderson again sought review and treatment in June 2020.

2. By 11 August 2020, the medical notes record that in the context of Ms Anderson’s application for review of the DSP refusal, her back pain is increasing, and on examination she had only 3 cm lumbar flexion.

3. In this matter, the qualification period is from 4 January 2019 to 5 April 2019: Schedule2, Part 2, Clause 4 of the Social Security (Administration) Act 1999.  Investigations and diagnosis in August 2020 are not of assistance therefore in assessing diagnosis, treatment and stability of the condition during that qualification period, unless the evidence refers to or addresses the applicant’s condition during the qualification period. 

4. In my view, the medical evidence pertaining to the lower back pain ranges from the absence of any reported diagnosis in medical certificates prior to or during the qualification period, to medical opinions suggesting a chronic condition affecting Ms Anderson’s quality of life in a medical certificate dated 2 September 2020 (Dr Prior, GP) at A9.  I note also that Ms Anderson has consulted with an exercise physiologist from 11 June 2020 for both the lower back pain and CFS. 

5. The totality of the evidence in my view does not support a finding that the condition of lower back pain was fully diagnosed, treated and stabilised during the qualification period, and so the condition is not one amenable to attracting points under the Impairment Tables.

6. Furthermore, and in any event, I note the observations of Ms Neylon in her report of 20 June 2020 (A10) that, in the context of lower back pain, Ms Anderson is reported to be slowly increasing her capacity for activity within the limits of her pain.  This reinforces my conclusion in respect of the qualification period that her lower back condition is not fully diagnosed, treated and stabilised.

   Ms Anderson does not qualify for DSP

7. For the above reasons, I assess Ms Anderson’s overall impairment rating at 10 points.  It is an essential criterion for qualification for DSP that a person’s impairment is of 20 points or more under the Impairment Tables: paragraph 94(1)(b) of the Act.

8. In those circumstances, it is not necessary to consider whether during the qualification period the applicant had a continuing inability to work within the meaning of s 94(1)(c) of the Act.

9. As Ms Anderson does not have 20 points or more under the Impairment Tables, she does not qualify for disability support pension within the qualification period.  The decision to reject her claim was therefore legally correct.

10. I will affirm the decision under review.

56.     I certify that the preceding fifty five  (55) paragraphs are a true copy of the reasons for the decision herein of Member M Kennedy.

..........[Sgnd]........................
Administrative Assistant Legal

Dated:  3 May 2021

Date of hearing:	23 April 2021
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Maleah Underhill, MILLS OAKLEY