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

Bertucci and Secretary, Department of Social Services (Social services second review) [2018] AATA 745 (4 April 2018)
Division:GENERAL DIVISION
File Number(s): 2017/2889
Re:Anna Bertucci
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:4 April 2018
Place:Melbourne

The decision under review is affirmed.
........................................................................
Ms Anna Burke, Member
SOCIAL SECURITY – disability support pension – whether qualified – anxiety/depression, obesity and osteoarthritis, disorders are fully diagnosed, treated and stabilised – whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975; s 37
Social Security (Administration) Act 1999; Schedule 2, Section 4(1)
Social Security Act 1991; s 94
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Ms Anna Burke, Member
4 April 2018
INTRODUCTION

Mrs Bertucci (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant her Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (the Act).
On 7 September 2016 Centrelink found that Mrs Bertucci was not entitled to DSP as she did not meet the requirements of the Act. Centrelink is the service provider for the Respondent.
The application was heard on 19 January 2018. Mrs Bertucci was represented by Ms Melissa Di Maio and Mr Tim Noonan, a government lawyer from the Department of Human Services appeared for the Respondent. Mrs Bertucci and Mrs Tonia Spano, the Applicant’s cousin, gave oral evidence at the hearing.
THE ISSUES IN CONTENTION
The issues in contention are whether at the time of her application Mrs Bertucci:
(a)had a physical, intellectual or psychiatric impairment;
(b)had a diagnosed condition which had been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)had a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
Mrs Bertucci, who is now 53 years of age, was widowed in September 2013. Prior to her husband’s death she had been his primary carer for over 15 years, as he suffered from renal failure. Mrs Bertucci lives by herself near Geelong and has an adult son who works full-time and has recently married. Mrs Bertucci has not been in the paid workforce for 30 years, having last worked prior to having a family. She said she continues to suffer from considerable grief, guilt and loss following her husband’s death and the life she did not have because of his illness. She receives considerable support from Mrs Spano with whom she is very close.
On 15 June 2016 Mrs Bertucci made an application for DSP, citing her medical conditions as: anxiety and panic disorder, depression and prolonged grief reaction, morbid obesity and osteoarthritis.
On 5 September 2016 Centrelink conducted a job capacity assessment (JCA) on Mrs Bertucci. The JCA report found that:
·osteoarthritis was considered to be fully diagnosed however not fully treated and stabilised as Mrs Bertucci was yet to engage treatment which was likely to increase functional abilities within the next two years
·morbid obesity was considered fully diagnosed but not fully treated and stabilised as Mrs Bertucci was yet to engage in any reasonable treatment for the management of the condition
·depression was considered to be fully diagnosed by a suitably qualified medical practitioner who had diagnosed the condition but not fully treated and stabilised as Mrs Bertucci was yet to undertake further recommended treatment which is likely to assist with improved functional ability
·no verified permanent, fully diagnosed, treated and stabilised condition was recorded therefore nil impairment points were awarded
·Mrs Bertucci was assessed as having a baseline work capacity of 15-22 hours per week and a capacity to work 15-22 hours per week in a more timely manner with an ability to maintain employment for longer with intervention after 2 years
On 7 September 2016 Centrelink wrote to Mrs Bertucci to inform her that her DSP application had been refused as she did not have an impairment rating of 20 points or more under the Impairment Tables.
On 6 December 2016 the Health Professional Advisory Unit of the Respondent conducted a review (by a registered nurse) of Mrs Bertucci’s conditions of osteoarthritis knees, hip and back; chronic gastritis; morbid obesity; asthma; type II diabetes; depression/ anxiety and osteoporosis. The report found:
·osteoarthritis knees, hips and lumbar spine and morbid obesity were not fully treated and stabilised;.
·type II diabetes, osteoporosis and asthma were fully diagnosed, treated and stabilised but attracted nil points as there was no functional impact from these conditions on activities, and
·chronic gastritis and depression/anxiety were considered fully diagnosed treated and stabilised and were having a mild impact upon her functional ability and 5 points were assigned to each condition.
On 8 December 2016, on internal review, a departmental Authorised Review Officer (ARO) concurred with the view of the Health Professional Advisory Unit that that Mrs Bertucci’s total impairment rating was 10 points, being made up of 5 points under Table 10 – Digestive and Reproductive Function for chronic gastritis and 5 points under Table 5 – Mental Health Function for depression/anxiety. The ARO also found that Mrs Bertucci had a continuing ability to work and had not met the program of support requirements because she had not actively participated in the program of support for 18 months in the last 36 months.
On 21 April 2017 the Social Security and Child Support Division of the Tribunal (AAT1) affirmed the decision of the ARO to reject Mrs Bertucci’s DSP claim and found:
·the condition of gastritis was not fully diagnosed, treated and stabilised at the date of claim and therefore no impairment rating could be assigned
·the condition of osteoarthritis was fully diagnosed but not treated and stabilised at the date of claim and therefore no impairment rating could be assigned
·the asthma was diagnosed, treated and stabilised but had no appreciable functional impact and therefore no impairment rating could be assigned
·the condition of anxiety/depression was diagnosed at the date of claim however without further diligent attempts to vary the antidepressant medication and to seek specialist opinion, the Tribunal could not consider these conditions fully treated and stabilised at the date of claim and therefore no impairment rating could be assigned
·the conditions of hypertension and diabetes were all well managed and resulted in no appreciable functional impact, additionally that the obesity was not fully treated and stabilised and therefore no impairment rating could be assigned to any of these conditions
·no finding made in respect of undertaking a program of support as Mrs Bertucci was not found to have a severe impairment.
On 17 May 2017 Mrs Bertucci sought a review of the AAT1 decision by this division of the Tribunal. She disagrees with the decision made and contends she is physically and mentally unequipped to deal with day to day tasks and is unable to hold down a job and these facts were not given ample consideration.
In accordance with Schedule 2, Section 4(1) of the Social Security (Administration) Act 1999 Mrs Bertucci’s qualification for DSP is to be determined from the date of her claim to a date 13 weeks thereafter, that being 15 September 2016 (the relevant period).
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person is qualified for a DSP 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;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
It is agreed that, at the time of application Mrs Bertucci suffered from osteoarthritis (knees, lumbar spine and hips), obesity, abdominal pain, hypertension, asthma, diabetes and mental health conditions that caused impairment and she therefore satisfied section 94(1)(a) of the Act.
Section 6(3)(a) of the Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.
Section 6(4) of the Impairment Tables state that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.
Section 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)     whether there is corroborating evidence of the condition; and
(b)     what treatment or rehabilitation has occurred in relation to the condition; and
(c)     whether treatment is continuing or is planned in the next 2 years.
Section 6(6) of the Impairment Tables indicates when a condition is fully stabilised:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either 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 in the next 2 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 2 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 Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, section 5(2)).
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”. Additional medical reports and statements were provided by Mrs Bertucci.
DOES MRS BERTUCCI HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act requires that to qualify for DSP, in the first instance, that a person suffers from an impairment.
The parties accept that Mrs Bertucci is suffering from osteoarthritis (knees, lumbar spine and hips), obesity, abdominal pain, hypertension, asthma, diabetes and mental health conditions. Accordingly, the Tribunal finds that Mrs Bertucci meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MRS BERTUCCI HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Osteoarthritis (generalised) (knees, lumbar spine and hips)
Dr Rosie Cummins, general practitioner, in Mrs Bertuccis’s medical report for her DSP claim dated 7 June 2015 stated that Mrs Bertucci had been her patient since 1990 and she was experiencing back, knee and lower limb joint pain. In a medical report dated 27 September 2016 Dr Cummins opined that Mrs Bertucci’s severe pain in her knees, lumbar spine and hips is due to osteoarthritis and she is unable to weight bear for more than 10 minutes due to severe pain in her knees and back. Sitting for 15 minutes causes her back pain, her ability to exercise is limited and she is unable to stand for long periods. She obtains partial relief by simple analgesics but she is unable to tolerate stronger analgesics because they aggravated her chronic gastritis.
Mrs Bertucci has had X-rays and bone density scans on her lumbar spine, knees, hips and pelvis which all note mild degeneration and osteoarthrosis as present.
The Health Professional Advisory Unit Opinion of 6 December 2016 opined there was sufficient medical evidence to support that Mrs Bertucci’s condition of osteoarthritis was fully diagnosed and permanent but not considered fully treated and stabilised as Mrs Bertucci has not participated in treatment which had been recommended by her treating General Practitioner.
At the hearing Table 3 – Lower Limb Function was explored in respect of the impact which the condition had on Mrs Bertucci’s capacity to function. Mrs Bertucci advised the Tribunal:
·she was able to drive short distances but found she could only sit for 10 minutes and if she was on a long drive she would have to stop and get out to stretch
·she is unable to undertake any overhead activities and no longer utilises the clothes line
·she did not have difficulty turning her head
·that she was unable to bend to pick things up and needed the aid of an instrument she described as a ‘grabber’ which she utilised to retrieve items which had fallen, however she could bend to pick things up from knee height
·that she did not have difficulty getting in and out of a chair
The Respondent contended that Mrs Bertucci’s osteoarthritis could not be considered fully treated and stabilised during the qualifying period as there was insufficient corroborating medical evidence about its impact upon her functional ability and whether she had undertaken all treatment options to stabilise the condition. Mrs Bertucci advised that she managed this condition in line with all medical advice provided by her general practitioner; taking medication as prescribed, and performing stretching exercises at home. Her general practitioner had not recommended that she see a physiotherapist at the time of her original claim.
In the decision of the AAT1 dated 21 April 2017 the member commented it was surprising that Mrs Bertucci was only referred for physiotherapy treatment in January 2017, and has never seen a specialist about her arthritis. Her advocate advised the hearing that Mrs Bertucci was in the habit of following her general practitioner’s advice to the letter and would never think to suggest alternative therapies or medications. She had full confidence in her general practitioner, as her doctor was the expert and provided her with the best medical advice and treatment and Mrs Bertucci was obviously not a medical expert.
Mrs Bertucci advised the Tribunal she had commenced seeing a physiotherapist after the qualifying period, and that they had recommended she use a walking stick. She had been advised by her general practitioner to try to lose weight to assist with her osteoarthritis but found she lacked the motivation because of her mental health condition and had not undertaken hydrotherapy as she had a terrifying fear of water.
Mrs Bertucci’s advocate contended that this condition was chronic in nature and that it would continue to deteriorate over time but accepted the condition was consistent with a mild impairment under the relevant impairment table.
The Tribunal was satisfied that Mrs Bertucci’s osteoarthritis was fully diagnosed, treated and stabilised during the qualifying period but was having a mild impact upon her functionality and therefore awarded 5 points under Table 3 as this best reflected the functional impact of her osteoarthritis.
Obesity
In the medical report for the DSP claim Dr Cummins opined that Mrs Bertucci was suffering from morbid obesity which resulted in back and knee pain, shortness of breath, indigestion, diarrhoea when stressed and prohibited her standing for long periods. Weight loss and exercise had been recommended as a treatment but Mrs Bertucci was having difficulty with compliance because of her mental health condition and her back and lower limb pain.
In a medical report dated 27 September 2016 Dr Cummins opined that Mrs Bertucci’s obesity greatly restricts her ability to carry out most daily activities and resulted in shortness of breath, fatigue joint pain indigestion and depression. She observed obesity is a contributing cause of all her chronic health problems.
The Health Professional Advisory Unit Opinion considered there was sufficient medical evidence to support that Mrs Bertucci’s condition of obesity was fully diagnosed and permanent but not fully treated and stabilised as Mrs Bertucci has not participated in treatment which had been recommended by her treating General Practitioner.
At the hearing Table 1 – Functions requiring Physical Exertion and Stamina was explored in respect of the impairment caused by Mrs Bertucci’s obesity. Mrs Bertucci advised the Tribunal:
·she has great difficulty walking and would struggle to walk around the block
·she had great difficulty walking around a shopping centre and undertook small shopping trips, generally late night to avoid crowds and would utilise a trolley to lean on to give her balance
·was unable to climb stairs
·was unable to stand for more than five minutes and had recently been advised to utilise a walking stick, which she conceded was after the qualifying period
The Respondent contended that Mrs Bertucci’s obesity could not be considered fully treated and stabilised during the qualifying period as she had not undertaken all treatment options to stabilise the condition.
Mrs Bertucci’s advocate contended that this condition was interrelated to all of Mrs Bertucci’s health issues and that options including a referral to a bariatric surgeon had been unaffordable, which was consistent with the medical advice of Dr Cummins. The advocate argued the condition of obesity was consistent with a mild impairment under the impairment table.

The Tribunal was satisfied that this condition was fully diagnosed, treated and stabilised during the qualifying period and that Mrs Bertucci has ongoing problems with her functional activities that require physical exertion and stamina. This is most notably associated with walking/performing physical activities and was having a mild impact upon her functionality. Therefore the Tribunal awarded 5 points under Table 1.
Mental health conditions
Dr Cummins’ report opined that Mrs Bertucci was suffering from anxiety and panic disorder which resulted in rapid pulse, hyperventilation, claustrophobia and agoraphobia. She observed the condition had started with financial stress and her prolonged role as carer for her husband who was suffering with renal failure. Following her husband’s death in late 2013 Mrs Bertucci was now having difficulty adjusting and had feelings of guilt. The condition impacted so greatly on her ability to function that she avoids crowds, closed spaces, is fearful of others judgement, has persistent low moods, poor memory and concentration, fatigues easily, suffers frequent insomnia, lacks motivation and has distanced herself from family members.
Dr Jenni Greene, clinical psychologist in a report 9 June 2016 stated:
I have been working with Anna in my role as clinical psychologist since December, 2015 when she was referred to me by her GP, Dr Rosemary Cummins, for psychological treatment of long-standing difficulties with low mood, anxiety and grief following the death of her husband, of whom she had been his long time carer, two years ago.
Anna presented with long-standing symptoms consistent with the diagnosis of major depressive order (MDD) with moderate impairment to her functioning. Anna reported difficulty sleeping, persistent low mood, lack of motivation and feeling of pleasure, ruminating thoughts, a sense of emptiness and hopelessness about her future and intermittently suicidal ideation. Anna also reported that most days she struggles to get out of bed, was socially withdrawn and had difficulty concentrating. Beyond these symptoms, Anna also reported ongoing chronic health conditions that result in chronic pain and ongoing fears about her financial security.
Anna has attended for six sessions over the past five months and has engaged in cognitive behaviour therapy to treat her symptoms. Despite being diligent in tending to homework tasks, Anna has not responded to treatment to date and her symptoms persist. Anna’s progress appears to be hampered by her health conditions as well as by financial disadvantage that activates ruminating distressing thoughts about the future of her financial security, often accompanied by suicidal ideation.
In my opinion, Anna’s symptoms currently impair her functioning across all domains of her life and she would be unlikely to be able to participate in employment or employment related activities. Anna symptoms are unlikely to remit in the near future and are likely to be ongoing. Anna’s mental health would currently benefit from being relieved of the pressures of employment activities and being afforded some sense of financial security that the DSP may provide her.
At the hearing Table 5 – Mental Health Function was explored in respect of the impact of Mrs Bertucci’s mental health conditions, with a focus on whether she has a possible severe impairment:
There is a severe functional impact on activities involving mental health function.
(1)       The person has severe difficulties with most of the following:
(a)       self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)       social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)       interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)       concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)       behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)        work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
Mrs Bertucci reported
·that she struggled to manage day-to-day activities and was unable to maintain household duties and to make meals. She needed regular support and assistance with daily activities and relied heavily upon her cousin Tonya to even remind her to get out of bed each morning. She constantly feels sick and is in great need of assistance up to three or four times a week
·she struggles to travel anywhere, even short distances, does not like attending supermarkets and tends to shop at night to avoid crowds or to go to the local shop to get simple supplies, as she does not cook for herself
·that she struggled to undertake social activities, even travelling the short distance to visit her parents was becoming more and more complex. She struggles even with family events these days and she will only attend generally if she knows her cousin Tonya will be present. Even then she finds that when she is out all she wants to do is race back home. She stated that even her only son’s wedding had not been a joyous occasion but caused her a great deal of stress and anxiety. She had two friends but she had been cutting them off and found they were becoming distant as she always had an excuse not to catch up with them. She stated she found she was just a drain on everybody and she considered it best if she just didn’t attend any social events
·that she had great difficulty concentrating and completing tasks. She used to enjoy baking but has now found that increasingly difficult because she simply can’t get around to completing the tasks this requires. She will pick things up and puts them down and never goes back to finishing them. She doesn’t read newspapers and magazines and whilst the TV is on for noise she never really concentrates on what is happening. She even has difficulty having phone conversations as she can’t handle chatting and makes a habit of ending phone conversations quickly
·she finds it best just to keep to herself as that way she doesn’t have to consider anyone but herself. She finds it too stressful to make decisions and simply can’t undertake activities. She’s found that she can no longer even attend two appointments in one day as the planning and concentration involved in getting to and from an appointment is just too complicated
·she was completely incapable of undertaking any work or training activity and had been for many years
Mrs Spano provided corroborating evidence at the Tribunal that she provides constant support every few days to Mrs Bertucci to ensure that she has meals and that she gets out of bed. She is constantly asking her over to her home for meals to ensure she is fed and has seen somebody. If she can’t make it herself she ensures that her sister or another family member drop in or call Mrs Bertucci to ensure she is okay. She indicated she had been doing this for many years, as Mrs Bertucci had reached out to her when she was struggling as a carer for her chronically ill husband.
The Respondent contended that during the qualifying period Mrs Bertucci’s mental health condition was not fully treated and stabilised. As found by the AAT1 the treatment provided so far has failed, yet no attempt had been made to vary medication or seek a specialist opinion.
At the AAT1 hearing the member found
It seems clear that the treatment provided so far has failed.
Yet no attempt has been made to vary the medication at all. Dr Cummins’ “Patient Health Summary” of March 2015 lists Zoloft taken at a dose of 50 mg daily and temazepam at night. The summary as of 23 February 2017 lists Zoloft at 100 mg daily. There’s been no recent attempt to either increase the Zoloft dose (the maximum recommended dose is 200 mg daily) or to abandon Zoloft in favour of another antidepressant medication. There are numerous other antidepressant drugs available, and the tribunal, being medically qualified, is aware that it may take some period of experimentation to find an antidepressant that is both effective and relatively free of side effects for an individual patient.
There is no way of knowing at this stage if another medication will be more efficacious than the Zoloft, but it is certain that the Zoloft is ineffective, if Mrs Bertucci’s reported symptoms are to taken at face value. Many patients at a similar impasse in their psychiatric treatment are referred to a psychiatrist for advice (if not actual treatment), particularly when medications are an issue. This has not occurred here.
Mrs Bertucci’s advocate took issue with this contention as Mrs Bertucci has at all times been guided by her treaters regarding the best course of treatment to manage her condition and was always compliant with these options. Further she argued attendance at a psychiatrist was never undertaken as this was not an option Anna could afford at the time and she is currently on the waiting list for psychiatric intervention. Mrs Bertucci advised the Tribunal her general practitioner had never referred her to a psychiatrist and had only done so after the outcome of the AAT1 hearing.
The Tribunal is satisfied that Mrs Bertucci’s anxiety and depressive disorder was fully diagnosed, treated and stabilised during the qualifying period as she has undertaken all reasonable medical treatment recommended by her general practitioner to stabilise the condition including counselling and medication.
The Tribunal did not find Mrs Bertucci had a severe impairment relating to her mental health function time of her claim. Although the evidence indicates she may possibly satisfy one or more of the severe table descriptors referred to above, particularly in regards to concentration and task completion, most of the descriptors would have to be satisfied for the Tribunal assign a severe impairment rating. She was still capable of self-care/independent living and social/recreational activities with a moderate level of impairment. Furthermore, if the Tribunal were to find most of the severe descriptors were met, section 11(1)(c) of the Impairment Tables requires that where an impairment is considered to fall between two ratings, the lower rating is to be assigned unless all of the descriptors in the higher rating are met. Accordingly The Tribunal awarded 10 points for a moderate impairment under Table 5 - Mental Health Condition.
Abdominal pain
In a medical report dated 27 September 2016 Dr Cummins opined that Mrs Bertucci suffers from abdominal pain at least three days per week with symptoms including vomiting bile, nausea and a lack of appetite. The pain may last for hours when severe and Mrs Bertucci has to lie down to get relief and that this intermittent pain in the upper abdomen often prevents her from performing any tasks. The disease went back to 2003 with a history of chronic gastritis which on the whole has been treated with medication, however further investigations and treatment are recommended.
The Respondent contended that during the qualifying period this condition was not fully diagnosed treated and stabilised.
The advocate for Mrs Bertucci agreed this was not a condition causing her significant functional incapacity and did not seek to have it considered for the purposes of this hearing.
Other conditions
In a patient health summary report dated 5 March 2015 Dr Cummins lists that Mrs Bertucci has an active past history of asthma, fatty liver, osteoporosis and diabetes mellitus.
The Respondent accepts that Mrs Bertucci is suffering from hypertension, asthma and diabetes which are all fully diagnosed treated and stabilised but contended they are generally well managed with medication and cause minimal or no impact on Mrs Bertucci’s ability to function.
The advocate for Mrs Bertucci agreed with the contention of the Respondent.
The Tribunal was satisfied that these conditions were fully diagnosed, treated and stabilised during the qualifying period but caused minimal functional impact on Mrs Bertucci and as such nil points were awarded for these conditions.
IMPAIRMENT RATING
The Tribunal has found that Mrs Bertucci has an overall impairment rating of 20 points and therefore satisfies section 94(1)(b) of the Act, with 5 points allocated under both Table 3 - Lower Limb Function and Table 1 – Functions requiring Physical Exertion and Stamina and 10 points under Table 5 - Mental Health Function. As she has not been awarded 20 points under a single table she is not regarded as having a severe impairment within the meaning of section 94(3B) of the Act. The Tribunal must therefore consider whether she satisfied the provisions in the Act relating to a continuing inability to work.
DOES MRS BERTUCCI HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP Mrs Bertucci must not only satisfy the requirement that she has an impairment with a rating of 20 points or more, she must also demonstrate she has a continuing inability to work as per section 94(1)(c) of the Act. Mrs Bertucci would be considered to have a continuing inability to work if she has actively participated in a program of support within the meaning of section 94(3C) of the Act prior to her claim for DSP and her impairment is of itself sufficient to prevent her from doing any work independently of a program of support.
Mrs Bertucci provided a letter from Catherine Skoric, DES employment Representative Corio dated 11 June 2015 which states:
Anna Bertucci a DES participant at CVGT Belmont, commencing in the program on 23 February 2015.
As Anna’s Employment Representative, in my professional opinion I believe she is not suitable for employment services and is unable to achieve a 15 hour employment benchmark.
Anna has presented at appointments with a high level of emotional distress, often crying in appointments and reports that she is not psychologically stable enough to participate in job seeking or training. She has reported struggling with the effects of being the carer for her husband for 15 years and then becoming unwell herself. Anna has reported that her previous DSP claim was rejected due to providing medical evidence from a non-clinical psychologist – however has since been receiving treatment from clinical psychologist in providing report to you.
From the information gathered and observations of Anna at appointments I fully support Anna for her application for Disability Support Pension.
The Respondent contended that the Tribunal should prefer the report of the job capacity assessors of Mrs Bertucci’s work capacity as they have specialist knowledge and expertise in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s work capacity. The Respondent further contended there is no evidence at the relevant time of Mrs Bertucci’s application that her impairments would have prevented her undertaking training activities to prepare her for work.
Mrs Bertucci advised the Tribunal she had attempted to participate in a child-care course to enable her to gain access to employment in the childcare sector and believed she would enjoy this as she loves being around children. She found she was unable to complete the coursework as she had limited knowledge of computers and had a great deal of trouble concentrating because of her mental health condition. She had been required to undertake placements at a child-care centre to complete the course and had been completely overwhelmed by the experience and had only completed a handful of days as she found she was even agitated assisting children at the puzzle table. She subsequently undertook some cleaning work but again this attempt to work failed as she was too slow and completely overwhelmed by this simple task.
The Tribunal found Mrs Bertucci had not completed a program of support as there was no evidence confirming that she had participated in such a program for the requisite 18 months prior to her claim. She therefore could not be found to have a continuing inability to work to satisfy section 94(1)(c) of the Act, The Tribunal accepted the statement of the DES Employment Representative (as they are an expert in the field of assisting people into the workforce) which reported that Mrs Bertucci had considerable difficulty in attending job seeking or training appoints and was therefore not a suitable candidate for employment services. However, the program of support requirements under the Act apply in a strict manner, and although temporary exemptions can apply and may possibly be appropriate in Mrs Bertucci’s case, the Tribunal has no discretion to waive the requirements. Accordingly, she cannot satisfy all the requirements under section 94(1) of the Act in order to qualify for DSP.
CONCLUSION
Having carefully considered all the evidence, the Tribunal finds that at the time of her original DSP application of 15 June 2016 Mrs Bertucci had the required 20 impairment points to satisfy section 94(1)(b) of the Act. However, as she did not have a severe impairment within the meaning of the Act, she was also required to complete a program of support. Without having done so she cannot have met all the requirements to be eligible for DSP and therefore the application cannot succeed.
DECISION
The decision under review is affirmed.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member

...........................[sgd].............................................
Dated: 4 April 2018

Date of hearing: 19 January 2018

Applicant: In person

Advocate for the Applicant: Ms Melissa Di Maio

Advocate for the Respondent: Mr Tim Noonan

Solicitors for the Respondent: Department of Human Services, FOI & Litigation

[2018] AATA 745

4 April 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	19 January 2018
Applicant:	In person
Advocate for the Applicant:	Ms Melissa Di Maio
Advocate for the Respondent:	Mr Tim Noonan
Solicitors for the Respondent:	Department of Human Services, FOI & Litigation