Angela Jenkins and Secretary, Department of Social Services
[2013] AATA 779
[2013] AATA 779
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1518
Re
Angela Jenkins
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 1 November 2013 Place Sydney The Tribunal sets aside the decision under review and instead decides that Ms Jenkins satisfies the requirements of section 94(1)(a),(b) and(c) of the Social Security Act 1991.
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Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – impairment tables –applicant meets required impairment rating requirement– decision under review set aside
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) ss 41, 42, Sch 1B, Sch 2
REASONS FOR DECISION
Ms N Bell, Senior Member
Ms Jenkins, claimed disability support pension on 14 July 2011 having expressed an intention to claim on 30 June 2011. A Centrelink officer rejected Ms Jenkins’ claim on the basis that she had insufficient points under the Impairment Tables under the Social Security Act 1991 to qualify for disability support pension. The officer also found that Ms Jenkins is able to work for 15-22 hours per week. The decision was affirmed on further internal review and by an authorised review officer and the Social Security Appeals Tribunal.
Ms Jenkins currently suffers from:
(a)irritable bowel syndrome (IBS);
(b)depression;
(c)arthritis and other conditions in her back;
(d)chronic pain;
(e)torn rotator cuff (shoulder);
(f)arthritis in her left knee; and
(g)migraine/headaches;
ISSUES
Section 94 of the Act provides for the following requirements for eligibility for disability support pension:
(a)a physical, intellectual or psychiatric impairment; and
(b)an impairment rating of at least 20 points or more under the Impairment Tables in Schedule 1B to the Act; and
(c)continuing inability to work.
The combined effect of sections 41 and 42 and clause 3 of Schedule 2 to the Social Security (Administration) Act 1999 is that only the conditions suffered by Ms Jenkins during the period from the date of her claim and for the following 13 weeks may be considered for assessment of her qualification for disability support pension. Those conditions must be assessed against the Impairment Tables as they were during that 13 week period, that is, from 14 July 2011 to 13 October 2011.
It is not in dispute that Ms Jenkins has impairments and so meets the first requirement of section 94. The remaining requirements give rise to the issues in her application.
DOES MS JENKINS HAVE AN IMPAIRMENT RATING OF AT LEAST 20 POINTS?
The introduction to the Impairment Tables provides that in order for a medical condition to attract an impairment rating under the Impairment Tables it must be permanent within the meaning of that term in the Introduction to the Tables. The Introduction provides at paragraph 5:
The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.
Paragraph 6 of the Introduction provides that when considering whether a condition is fully diagnosed, treated and stabilised, one must 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 two years.
I will deal with each of Ms Jenkins’ conditions in turn.
Irritable Bowel Syndrome (IBS)
Ms Jenkins was diagnosed with IBS in 1997.
Dr Janet Anderson, Ms Jenkins’ general practitioner, said her IBS is treated as well as it can be. She said Ms Jenkins’ colorectal surgeon considers that her anxiety stirs up her IBS, so it can be treated when her symptoms are severe, but when her anxiety levels are high it is difficult to control. She told the Tribunal that Ms Jenkins has been treated at emergency departments for her IBS on a couple of occasions. She said surgery was not advised by Ms Jenkins’ surgeon.
Ms Jenkins said her IBS affects her about three to four times a week. She takes Buscopan for treatment.
Table 11.2 is the table relevant to assess conditions such as IBS. It provides:
TABLE 11.2 GASTROINTESTINAL: PANCREAS, SMALL AND LARGE BOWEL, RECTUM AND ANUS
Rating Criteria NIL Anal disorder: infrequent and minor symptoms, eg, haemorrhoids, anal fissures,
controlled by medication
Bowel disorder, eg, irritable bowel, diverticulosis: infrequent and minor symptoms
such as constipation, or bowel disorder which respond to dietary treatment alone.
TEN Bowel disorder: frequent moderate symptoms despite optimal treatment
Occasional faecal soiling despite optimal treatment
Anal disorder: marked symptoms despite regular treatment
Colostomy, ileostomy ‑ well controlled
Established chronic pancreatic disease with moderate symptoms (pain/steatorrhoea)
Large abdominal hernia not easily reduced and resulting in persistent moderate
symptoms.
TWENTY Faecal soiling necessitating frequent changes of underwear and an incontinence pad
despite optimal treatment
Bowel disorder: marked symptoms, such as regular diarrhoea and frequent
abdominal pain, only partially controlled by optimal treatment
Colostomy, ileostomy ‑ poorly controlled
Large abdominal hernia and/or repeated unsatisfactory hernia repairs resulting in
frequent and persistent severe symptoms
Established chronic pancreatic disease with severe symptoms (pain/steatorrhoea).
THIRTY Bowel disorder: diarrhoea and abdominal pain on most days, with poor response to
treatment and considerable interference with daily routine
Jejunostomy
Established chronic pancreatic disease with severe symptoms (pain/steatorrhoea)
and with intractable complications.
FORTY Complete faecal incontinence.
Dr Anderson agreed that Ms Jenkins falls within the description of:
Bowel disorder: marked symptoms, such as regular diarrhoea and frequent abdominal pain, only partially controlled by optimal treatment
Dr Anderson agreed that Ms Jenkins’ IBS is difficult to treat but is treated as well as it can be. She said the nature of the condition includes “bloating, abdominal pain, cramps, diarrhoea”. Dr Anderson said that up to the relevant period, Ms Jenkins reported to her that her IBS was affecting her at a frequency of 100 days per year. She said it is an unpredictable condition that might not be a problem for weeks but then it can stir up again.
I note that Dr Anderson had previously assessed this condition as attracting an impairment rating of 5 points (impossible under the relevant Table) because at the time of making that assessment in 2012 Ms Jenkins was not suffering symptoms. Having taken Dr Anderson through the appropriate Table (Table 11.2) at the hearing, and having heard her assessment of the longstanding and continuing effect of Ms Jenkins’ irritable bowel syndrome under that Table, I prefer to rely on the oral evidence she gave to the Tribunal.
On the basis of this evidence, I find that Ms Jenkins has a degree of impairment of 20 points under Table 11.2.
Depression and Anxiety
Ms Jenkins said her depression was diagnosed in 2004/2005 when she saw a psychologist at Ryde Mental Health clinic. She said she was prescribed Cymbalta and at the time undertook some cognitive therapy. She said her antidepressants dosage is being increased and she sees the psychiatrist once a month.
In a Centrelink ‘Treating Doctor’s Report’ dated 1 February 2007, Dr Anderson listed “severe depression” under the heading “Other Conditions” affecting Ms Jenkins. In the section titled, “impact on ability to function”, Dr Anderson wrote “constant weeping at present”.
In the ‘Treating Doctor’s Report’ dated 11 July 2011 Dr Anderson also listed “depression” in “Other Conditions”, stating that Ms Jenkins was on antidepressants and “tired and weepy, difficulty concentrating”.
Dr Anderson told the Tribunal that Ms Jenkins’ depression has been a problem for many years and was exacerbated by the death of Ms Jenkins’ grandfather in 2006-2007. Dr Anderson said that Ms Jenkins is still attending Ryde Hospital and seeing a psychiatrist and is still on medication for her depression.
As to how depression affected Ms Jenkins’ ability to attend work, Dr Anderson said that Ms Jenkins has very poor self-esteem, feels hopeless and this made it difficult for her to concentrate or get out of bed and although she is on antidepressants she slips back into severe anxiety and depression. She said the anxiety affects her IBS, and that her colorectal specialist considered that her anxiety causes severe attacks of abdominal pain, cramping and diarrhoea. She said Ms Jenkins is often unable to leave her home.
Dr Anderson gave evidence that Ms Jenkins, at least in July 2011, was already on Cymbalta, an antidepressant, that she was seeing a psychiatrist at Ryde Hospital and being treated by the mental health team there. Treatments were regular, between fortnightly or monthly. Dr Anderson confirmed that in the relevant period Ms Jenkins’ depression was causing her to have poor concentration, low motivation and poor self-esteem. Dr Anderson said the only activity Ms Jenkins might have been able to undertake with those symptoms was part-time study.
I asked Dr Anderson about her report of July 2011 in which she only mentioned depression but not anxiety. Dr Anderson said the conditions “go hand in hand.”
On 9 July 2012 Dr Anderson assessed Ms Jenkins as having an impairment rating of 10 points under Table 6. In cross examination she said she had not listed depression as a main condition in her 2011 Treating Doctor’s Report because Ms Jenkins’ depression and anxiety were not affecting her then as badly as they were in 2012. This inconsistency was unhelpful to Ms Jenkins.
Dr Anderson provided to the Tribunal a report of Diana Falk, clinical psychologist, dated 19 August 2011. Ms Falk wrote that Ms Jenkins “presents with a 6-7 year history of anxiety symptoms with depressed mood.” The report also noted that though she has been on Cymbalta for several years, she continued to experience significant anxiety and low mood. Her symptoms include “sometimes teary, suffers from insomnia, ruminates at night, fears the dark and going to be bed, has a fear of being alone, may have some agoraphobia, is anxious about answering the telephone (fears bad news) consciously expects the worse in any situation, overplans to avoid feeling overwhelmed and frequently thinks about how she will die.”
A report from her treating Psychiatrist, Dr Himalee Abeya, dated 9 November 2012, although outside the relevant period, provides a diagnosis which states that Ms Jenkins “has ongoing anxiety disorder for which she receives treatment.”
The relevant Table provides:
TABLE 6. PSYCHIATRIC IMPAIRMENT
It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. People with established psychiatric disorders (eg. Bipolar Disorder) may be highly variable in their clinical presentation and this factor must be taken into account in the assessment. The assessment of psychiatric impairment may benefit from investigating; reports from mental health case managers, compliance with and the effects of medication, support systems that people have in place, the degree of insight present and the presence of psychotic illness. Where a person has a short term problem, for example an adjustment disorder with depression following an illness or marital breakdown, initially this should usually be considered to be of a temporary nature. Table 6 is used for permanent psychiatric disorders only. If there is insufficient clinical information available, a current or recent specialist report should be obtained.
Rating Criteria
NIL Mild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends) Medical therapy or some supportive treatment from treating doctor may be required.
TEN Moderate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full‑time work. (eg. short periods of absence from work).
TWENTY Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti‑social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.
On balance, the evidence supports an assessment of 10 points under Table 6.
Back condition
Ms Jenkins suffers from degenerative arthritis, spinal kyphosis, scoliosis and spondylitis.
Ms Jenkins said her back is her biggest problem. She was diagnosed with scoliosis at the age of 14 in 1985 and started having pain after the birth of her daughter in 1997. She said the pain was so bad that she was rolling out of bed.
Since that time treatment for her back has included analgesics and every morning she takes painkillers right after she wakes up. During the night she wakes up from the pain. She takes six to eight tablets of Panadine Forte a day. During periods of muscle spasms she takes Valium and said she is effectively immobile. She said she cannot stand nor do the dishes. She said she finds herself taking the Valium at least once a week.
She said after taking painkillers she can sit for about an hour but has trouble after that as the “spondylothesis goes out” and she sits “curved like a foetus” because if she tries to sit upright, her spondylothesis “goes out.”
She said she cannot stand for long and can walk for only 15 minutes at a time.
Dr Anderson said that Ms Jenkins’ scoliosis affects her mobility and flexibility. However, Dr Jenkins also said that Ms Jenkins’ back condition was not, at the time of her claim or for the 13 weeks following, a fully treated or stabilised condition. She said that at that time Ms Jenkins had not consulted a rheumatologist or a back specialist.
For this reason, Ms Jenkins’ back condition cannot be assessed under the Impairment Tables.
Chronic pain
In oral evidence to the Tribunal, Dr Anderson said Ms Jenkins suffers from chronic pain. She was unable to provide a date of diagnosis, but said onset of back pain was in approximately 1990. This was not a condition listed on any of her reports during the relevant period. Dr Anderson said that according to Table 20, Ms Jenkins’ symptoms are “moderate to severe”.
The difficulty with this sparse evidence is that I have already found that Ms Jenkins’ back condition, to which Dr Anderson tied Ms Jenkins’ chronic pain, has not been fully treated. This condition cannot be assessed under the Impairment Tables.
Shoulder condition
Ms Jenkins said she has cortisone injections and takes analgesics for her shoulder condition. She said she can raise her arm above her head but can only carry a light shopping bag. She said she lives a minute from the shopping centre, and asks her daughter to assist her if she has a lot to carry.
She said she cannot do basic housework and any task that requires movement and repetition, like scrubbing a bath tub or ironing. She said that she can only do these tasks with pain and has to stop after a little while.
She said she tries to do some exercises she learned when she was having physiotherapy some years ago including using “Therabands” to strengthen her shoulder and keep the pain to a minimum.
Dr Anderson told the Tribunal that Ms Jenkins had a fall in 2005 and an MRI in 2006 revealed an extensive tendon tear. She said Ms Jenkins’ orthopaedic surgeon thought surgery was necessary but this was deferred by Ms Jenkins because she was a single mother looking after her young daughter on her own. Dr Anderson agreed that surgery is still currently advised and agreed that the condition could not be said to be fully treated.
It follows that Ms Jenkins’ shoulder condition cannot be assessed under the Impairment Tables.
Knee pain
Ms Jenkins said her left knee has degenerative osteoarthritis. She takes anti-inflammatories to relieve the fluid build up from time to time. She also takes Celebrex and Voltaren, once and three times a day respectively. She said she only takes the Voltaren if the pain is really bad.
She said she wakes up with intense pain and aches in her left knee.
The ultra sound report of Dr Dwyer dated 16 June 2011 provides that there is “left knee effusion” and “X-ray would be the next investigation of choice”.
Ms Jenkins told the Tribunal she had an MRI of her knee in January this year. I do not have any information regarding this investigation of Ms Jenkins’ knee condition.
The Table relevant to lower limb function provides that both limbs must be assessed together. Ms Jenkins indicated no functional issue in relation to her right knee. She walks to the shops to buy her groceries.
Given that Ms Jenkins was undergoing further investigations on her knee after the relevant period, I cannot be satisfied that it was fully diagnosed, treated and stabilised and so her knee condition cannot be assessed under the tables.
Migraine/headaches
Ms Jenkins said she takes three aspirin on the onset of a headache and lies down, but said overall the migraines and headaches do not have a debilitating effect on her. On the frequency of migraines, she said the really affecting ones happen about once every three months and she has to lie down for a day.
Given that this condition has a minimal effect on Ms Jenkins, no impairment rating will be assigned.
It follows that, with 30 points under the Impairment Tables, Ms Jenkins satisfies the requirements of section 94(1)(b) of the Act.
DOES MS JENKINS HAVE A CONTINUING INABILITY TO WORK?
Section 94(2) of the Act defines “continuing inability to work” as follows:
94 (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)—the person has actively participated in a program of support within the meaning of subsection (3C); 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.
Note: For work see subsection (5).
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(5) In this section:
…
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
The Secretary contended that Ms Jenkins has a work capacity of a minimum of 15 hours per week. The Secretary also contended that Ms Jenkins has the capacity to undertake retraining as demonstrated by her ability to attend TAFE.
Ms Jenkins last worked at Coles in 2000 holding a part-time position. Her previous work experience included banking, waitressing , retail sales and working as a visa officer in an Australian consulate in Canada.
Ms Jenkins took two years part time to finish a Certificate IV in Tourism at TAFE. She said on average this took about 10 hours per week of mostly face-to-face class time. She said she did not attend all of her classes.
Ms Jenkins’ capacity for work has been assessed by a total of five job capacity assessors. The first job capacity report, by Alison Walker on 21 February 2007, assessed Ms Jenkins’s future work capacity to be 15 to 22 hours per week with and without intervention. The second assessment in September 2009 by Margarita Corapi, assessed Ms Jenkins’ then current work capacity to be 15 to 22 hours per week and any future capacity with medical intervention, rehabilitation and job seeking assistance to remain at 15 to 22 hours per week. Suitable work included light semi-skilled including customer service roles. At that time, Ms Jenkins had a temporary reduced work capacity of 8 to 14 hours per week. The third assessment by Melissa Waugh on 9 December 2009 made an identical assessment to that of the one made in 2009 by Margarita Corapi. Also, at that time, Ms Jenkins had a temporary and current baseline reduced work capacity of 8 to 14 hours per week due “to the combined functional impact of the client’s physical and psychological conditions, including ongoing symptoms related to depression, pain, decreased ROM and physical limitations.” The assessment of Claudia McGlynn, in August 2011 assessed a temporary work capacity of 0-7 hours per week to end on 27 March 2012. She assessed that Ms Jenkins “was provided a temporarily reduced capacity for work in order to undertake treatment for her depression.” She assessed that Ms Jenkins had a baseline work capacity of 8 to 14 hours per week and assessed suitable work to be light less skilled. She assessed that future work capacity with intervention will increase to 15 to 22 hours per week.
A file assessment review report by job capacity assessor Angus Moncrieff dated 5 September 2012, was provided for the purposes of this appeal. It does not add to the previous assessments significantly.
Dr Anderson said that Ms Jenkins’ irritable bowel syndrome would place limitations on her ability to travel to places where she could work and this, and her need to take a number of days off at a time, would affect work attendance on approximately 100 days per year - unpredictably. She also said that when her depression is prominent she would simply not be able to get herself out of bed. She noted that this level of severity was a feature of her condition at the time of her claim in 2011. She said Ms Jenkins may be able to do some work if she ever gets all of her conditions “straightened out”, but she would still be very limited. Dr Anderson was also pessimistic about the likelihood of Ms Jenkins’ conditions being completely controlled. She said that because Ms Jenkins’ symptoms vary so much in intensity at different times it is impossible to predict a time at which she might be able to work or train for 15 hours per week.
I consider that Ms Jenkins’s rated conditions, of themselves, prevent her from working for at least 15 hours per week. While Ms Jenkins has shown that she is able to undertake training, this was for only 10 hours per week. Given the long history of her conditions, I see no indication of possible improvement in the next two years.
It follows that Ms Jenkins has a continuing inability to work within the meaning of section 94(1)(c) of the Act.
DECISION
The Tribunal sets aside the decision under review and instead decides that Ms Jenkins satisfies the requirements of section 94(1)(a),(b) and(c) of the Social Security Act 1991.
I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell. .......[Sgd].................................................................
Associate
Dated 1 November 2013
Dates of hearing 8 January and 12 June 2013 Date final submissions received 4 September 2013 Applicant In person Solicitors for the Respondent G Lozynsky, DHS Program Review Litigation Branch
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