Belinda Munday and Secretary, Department of Social Services
[2014] AATA 231
[2014] AATA 231
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1627
Re
Belinda Munday
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 17 April 2014 Place Canberra The decision under review is affirmed.
..............................[sgd]..........................................
Mr S. Webb, Member
SOCIAL SECURITY – claim for Disability Support Pension – impairments – not fully diagnosed treated and stabilised – less than 20 impairment points – decision affirmed
Social Security Act 1991, s 94
Social Security (Administration) Act 1999, Schedule 1
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr S. Webb, Member
17 April 2014
Belinda Munday claimed Disability Support Pension (DSP). Her claimed was refused by primary determination. This decision was affirmed on review by an authorised review officer, and by the Social Security Appeals Tribunal. She is not happy with result and applied for review.
In the course of proceedings, Ms Munday provided up-dated medical reports addressing the present state of her health and asked that the application be dealt with on the papers. The Secretary agreed. The application was listed before me to be heard in that manner.
The issue to be determined is whether Ms Munday’s claim for a DSP is made out. Specifically, it is necessary to decide whether she met the qualification requirements for payment of DSP on the day she made her claim, or within 13 weeks thereafter. If she did not, DSP is not payable.
The qualification requirements for DSP are set out in s 94 of the Social Security Act 1991 (the Act). Essentially, there are three core criteria –
(a)whether Ms Munday suffers from one or more physical, intellectual or psychiatric impairments; and if so
(b)whether the impairments are of 20 or more impairment points under the tables in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination); and if so
(c)whether the impairments cause a continuing inability to work 15 or more hours per week.
Under the start date rules set out in Schedule 1 to the Social Security (Administration) Act 1999 (the Administration Act), Disability Support Pension is only payable if the person satisfies the essential criteria on the day the claim is lodged or within 13 weeks thereafter (the qualifying period).
As Ms Munday lodged her DSP claim on 11 January 2012[1], it is necessary to determine whether or not she satisfied each of the essential criteria on that day or within the qualifying period that ended on 11 April 2012[2]. If she did not, the pension will not be payable under the DSP claim she lodged on 11 January 2012. That is so even if Ms Munday is shown to have satisfied the essential criteria presently, or at any time after the end of the qualifying period.
[1] T8, folio 139.
[2] Social Security (Administration) Act 1999, Schedule 1
Impairments
Ms Munday suffers from a number of medical ailments, including –
(a)toxoplasmosis resulting in bilateral retinal scarring affecting the vision in both eyes, worse on the left;
(b)loss of balance and episodic blackouts resulting in lethargy;
(c)episcleritis and nodular areas over the insertion of the lateral rectus muscle in the right eye;
(d)hepatitis C;
(e)anxiety and depression;
(f)low back and buttock pain associated with probable right sacroliliac joint incompetence;
(g)neck pain associated with whiplash disorder and a minor C6 avulsion fracture; and
(h)gastro-oesophageal reflux disease.
These ailments are, or are productive of, ‘physical, intellectual or psychiatric impairments’ for the purposes of s 94(1)(a).
Impairment ratings
Ms Munday’s impairments are to be rated applying the Rules and Tables set out in the Determination. The ‘functional impact of impairment’ is to be assessed. For this reason it is necessary to identify the functional impairments arising from each condition.
Importantly, an impairment rating may only be assigned if the condition causing the impairment is ‘permanent’. Under Rule 6, for a condition to be permanent, it must be ‘fully diagnosed’, ‘fully treated’, ‘fully stabilised’ and likely to persist for more than two years.
When determining whether a condition is fully diagnosed and fully treated the following are to be considered –
(a)Whether there is corroborating evidence of the condition;
(b)What treatment or rehabilitation has occurred in relation to the condition; and
(c)Whether treatment is continuing or is planned in the next two years.
A condition is fully stabilised if –
(a)the 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 within two years, or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
The steps to be followed when assigning an impairment rating are set out in Rule 10 of the Determination - the functional loss must be identified, then the relevant Table selected and finally the appropriate rating assigned. Where multiple conditions cause the same impairment, a single rating should be assigned under a single Table.
Toxoplasmosis
There is no dispute, and the present evidence establishes, that Ms Munday’s toxoplasmosis chorio-retinitis was fully diagnosed, treated and stabilised, and permanent as of 11 January 2011. She suffered toxoplasmosis in 1985, at the age of 15. On 1 April 2011, Dr Quinn, Ms Munday’s treating general practitioner, reported that the condition caused 75 percent vision loss in the left eye and 15 percent vision loss in the right which was likely to persist for more than two years, with likely deterioration.[3]
[3] T4 folio 89.
The primary functional loss caused by Ms Munday’s toxoplasmosis is vision loss.
Dr Quinn described symptoms including loss of balance, blackouts, lethargy, anxiety and depression. Whether or not Dr Quinn is correct is ascribing these ‘symptoms’ to toxoplasmosis, it is first necessary to determine whether these are within the meaning of ‘impairment’ under Rule 3 of the Determination, or whether they are to be treated as a ‘condition’ under that Rule.
Under Rule 3, ‘impairment’ is given the following meaning – ‘a loss of functional capacity affecting a person’s ability to work that results from the person’s condition’; and ‘condition’ means a medical condition.
I am satisfied that the blackouts and related symptoms of loss of balance and lethargy are properly to be treated as a ‘condition’. The symptoms appear to be inter-related. The same can be said of Ms Munday’s anxiety and depression.
As to the assessment of functional impairment of vision, on 9 June 2011, Dr Chan, an ophthalmologist, examined Ms Munday and reported “significant left central macular scarring” and a “small right macular (inferior macular) scar”, resulting in reduced acuity in both eyes and reduced field of vision in the left eye.[4]
[4] T5 folio 98.
In a report dated 6 August 2012 (Exhibit 1), Dr Atkins, a consultant ophthalmologist, reported visual acuity of “right eye 6/6 and left eye; count fingers”.
On 3 February 2012, Kristen Haswell, an exercise physiologist and job capacity assessor, noted that Ms Munday reported that -
(a)she is photosensitive and wears sunglasses on most occasions;
(b)she is capable of passing the basic eyesight test to obtain a driver’s license, but avoids driving due to her vision limitations;
(c)she is able to read road signs, but is unable to read small print, such as a newspaper; and
(d)she does not utilise any visual aids.[5]
[5] T9 folio 141 and 144.
Ms Munday’s visual functional impairments are to be assessed under Table 12 of the Determination. She has significant loss in her central field of vision in her left eye and has difficulty reading small print and road signs. This is consistent with difficulty performing some daily tasks, such as seeing print letters and reading routine materials, whereby she may need to use alternative formats with large print in the workplace. Ms Munday does not use spectacles or contact lenses or other visual aids. In all likelihood, macular scarring vision impairment would not be assisted by spectacles or contact lenses. Whether she has a ‘need’ for any other form of vision aid or assistive device when performing some tasks is not established on the present materials.
On balance, these functional impairments do not satisfy the criteria for a rating of 10 points, but they are consistent with those at the 5 point level.
Episcleritis
In a statutory declaration dated 12 March 2013, Ms Munday asserts that Dr Chan “ripped a stitch that had been in my eye approx. 40 yrs and had given me no trouble prior” and “ruined my only good eye and I now have blurry vision intermittently in that eye”[6].
[6] T16 folio 161.
On 6 August 2012, Dr Atkins reported –
“a couple of nodular areas over the insertion of the lateral rectus muscle. This is in the same position where a squint procedure would have been performed many years ago. She has an overlying episcleritis which could be related to the previous surgery. This may be granulomatous inflammation around the sutures on her muscle. Fortunately, the cornea is clear and quiet. I have given her a course of hot compresses to the shut lid followed by a strong topical steroid and arranged to review her in a couple of weeks time to follow her progress.”
On this evidence, it appears that, while episcleritis and nodular areas may have been present for some years, the condition was under investigation only well after the qualifying period. Dr Atkins made a possible diagnosis of granulomatous inflammation around the sutures on her muscle and prescribed treatment with arrangements to monitor her progress over subsequent weeks.
On that basis, I am satisfied that this condition was not fully diagnosed and fully treated during the qualifying period.
No rating greater than 0 can be given.
Episodic blackouts, loss of balance and lethargy
There is an open question whether these symptoms are properly attributable to Ms Munday’s toxoplasmosis chorio-retinitis or to some other cause, and whether they are ‘permanent’ for present purposes.
It appears that Dr Quinn referred Ms Munday for specialist neurological assessment and investigation of the ‘blackouts’ and related falls and lethargy. This is noted by Ms Haswell in her Job Capacity Assessment report of 3 February 2012. I am satisfied that the loss of balance, blackouts and lethargy are consistent with symptoms reported by Dr Macesic on 30 September 2013 (Exhibit 2) and Dr Giles on 14 February 2014 (Exhibit 3).
Thus, even though it may be accepted that Ms Munday complains she has experienced symptoms or episodes of this kind for many years following the toxoplasmosis infection in 1985, medical investigations were ongoing as recently as February 2014.
For this reason, it cannot be said that this condition was fully diagnosed and fully treated during the thirteen week qualifying period – I am satisfied that it was not. For this reason no rating greater than 0 can be assigned.
Hepatitis C
This condition was not mentioned by Dr Quinn in his report dated 1 April 2011 or in Job Capacity Assessment reports that are in evidence.
It appears that the condition was diagnosed on investigation on 21 January 2013.[7]
[7] T16 folio 174.
For this reason I am unable to find that it was fully diagnosed during the qualifying period. No rating above 0 can be given.
Anxiety and depression
On Dr Quinn’s medical report of 1 April 2011, it appears that Ms Munday’s anxiety and depression were diagnosed and being treated with “counselling”, but these conditions were “generally well managed and … cause minimal or limited impact on ability to function”.[8]
[8] T4 folio 93.
On 27 July 2011, Blaise Deshon, a registered psychologist and job capacity assessor, reported that Ms Munday had suffered from depression for several years, and that she had obtained treatment from a psychologist and a psychiatrist more than one year previously.[9] Ms Deshon did not consider the condition to be ‘permanent’ as the symptoms related to Ms Munday’s worries about blackouts and some improvement could be expected with treatment.
[9] T7 folio 104.
The present materials do not indicate that Ms Munday has obtained further treatment for her psychological symptoms – she was previously prescribed anti-depressant medication and psychological counselling. Furthermore, the blackout condition is not yet fully diagnosed or fully treated. Ms Haswell was assisted by Philippa Scott, a registered psychologist, in producing the Job Capacity Assessment report of 3 February 2012. Their assessment was that Ms Munday’s anxiety and depression was not fully treated or fully stabilised at that time.[10]
[10] T9 folio 142.
The materials before me do not support a different conclusion in respect of the qualifying period. For this reason I am not able to assign an impairment rating above 0 for this condition.
Low back and buttock pain
In his report of 1 April 2011, Dr Quinn referred to “L/S back pain” that was apparently diagnosed in 2006 and treated with analgesia. This is confirmed in the Job Capacity Assessment reports on 27 July 2011 and 3 February 2012, in which the condition was accepted as ‘permanent’ and likely to deteriorate, albeit combined with a cervical spine condition.
On this evidence, I accept that the condition was fully diagnosed, treated and stabilised, and ‘permanent’ during the qualifying period.
As to any resulting functional impairment, in a report dated 5 August 2013 (Exhibit 4), Kylie Barden, Ms Munday’s treating physiotherapist, diagnosed right sacroiliac joint incompetence with reduced lumbar range of motion and guarding of lumbar movements. Pain was said to be aggravated by lifting, lying supine, twisting, standing for more than 20 minutes, leaning over a bench for more than two or three minutes and sitting for more than 30 minutes. I accept Ms Barden’s report of the chronicity of these complaints.
The impairments are to be assessed under Table 4. The descriptors at the 10 point level are not satisfied, but Ms Munday meets criterion 1(d) as she has some difficulty turning her trunk. It follows that the functional impairment attracts a rating of 5 points.
Neck pain
Dr Quinn, Ms Deshon and Ms Haswell referred to the presence of cervical spondylosis diagnosed in 2006 following a motor vehicle accident. This is confirmed by the Emergency Department records of the Royal Brisbane and Women’s Hospital from November 2005.[11] On Dr Quinn’s report, treatment was analgesia, anti-inflammatory medication and physiotherapy.
[11] T16.
On this evidence, I accept that this condition was fully diagnosed, treated and stabilised, and ‘permanent’ during the qualifying period.
Ms Barden’s assessment on 5 August 2013 is largely consistent with Ms Haswell’s assessment on 3 February 2012[12], which I accept. On this evidence, it appears that Ms Munday had difficulty sitting for more than one hour and looking overhead to hang washing on a clothes line, she had grab rails in her bathroom to assist her rise from a sitting position to stand and she reported being able to pick up items from the floor on an occasional basis. I note that Ms Barden reported that Ms Munday had difficulty sitting for more than 30 minutes. If that is correct, it is likely that Ms Munday’s condition has deteriorated. I must consider the functional impairments during the qualifying period.
[12] T9 folio 142.
These functional impacts are to be assessed under Table 4.
The descriptors at the 10 point level are not satisfied on the present evidence, but it is established that Ms Munday experienced some difficulty with overhead activities, such as hanging out washing, and moving her head to look upwards. This is consistent with a mild functional impact that attracts a rating of 5 points.
Gastro-oesophageal reflux disease.
This condition was not referred to by Dr Quinn, Ms Deshon or Ms Haswell. The only reference I could find is in the summary of current medications as of 12 June 2013 (Exhibit 5).
This is not sufficient to determine whether Ms Munday’s gastro-oesophageal reflux disease was fully diagnosed treated and stabilised, and permanent during the qualifying period.
That being so, I cannot assess the condition or any related impairments, and I am unable to assign an impairment rating.
Impairment points
The functional impairments from Ms Munday’s ‘permanent’ conditions attract a combined rating of 15 impairment points.
This is not sufficient to satisfy the second essential criterion under s 94(1)(b) of the Act.
Conclusion
It follows that I must conclude that Ms Munday’s January 2012 claim for a DSP is not made out within the qualifying period.
This means that the decision under review must be affirmed.
It is not necessary to proceed further to consider the third essential criterion, in respect of a continuing inability to work.
I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ..............................[sgd]..........................................
Associate
Dated 17 April 2014
Date of hearing 16 April 2014, on the papers Applicant In person Advocate for the Respondent Glenda Heggen Solicitors for the Respondent Program Litigation and Review, Department of Human Services
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