Bishop and Secretary, Department of Social Services (Social services second review)
[2015] AATA 561
•31 July 2015
Bishop and Secretary, Department of Social Services (Social services second review) [2015] AATA 561 (31 July 2015)
Division GENERAL DIVISION File Number
2014/6054
Re
Tracey BISHOP
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert
Date 31 July 2015 Place Melbourne The Tribunal affirms the decision under review.
..........................[sgd]........................................
Mr Conrad Ermert
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether injury permanent – whether 20 impairment points assignable – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr Conrad Ermert
31 July 2015
INTRODUCTION
In 2007 Miss Bishop, the Applicant, had a left knee replacement operation after an accident at work. She has not been in paid employment since that time. Miss Bishop was granted a DSP in February 2010 however it was cancelled in June 2010 because a Lump Sum Preclusion Period came into effect.
In 2012 Miss Bishop fell in a supermarket with resulting pain in both knees and her back. In July 2013 Miss Bishop had an arthroscopic debridement of her right knee.
In early 2014 Miss Bishop lodged with Centrelink her current claim for disability support pension (DSP). Centrelink is the service provider for the Department of Social Services, the Respondent. In her claim Miss Bishop listed her disabilities as: Knee Problems to both legs. My Hips, leg. Drug problems. Back pain.
On 1 May 2014 Centrelink rejected Miss Bishop’s claim as she did not have a functional impairment of 20 points or more assessed under the Impairment Tables. Miss Bishop requested a review of the decision by an Authorised Review Officer (ARO) of Centrelink. On 11 September 2014 the ARO affirmed the original decision to reject the claim.
Miss Bishop requested a review of the ARO decision by the Social Security Appeals Tribunal (SSAT). On 28 October 2014 the SSAT affirmed the decision of the ARO.
On 21 November 2014 Miss Bishop applied to this Tribunal for a review of the SSAT decision.
HEARING
At the hearing Miss Bishop represented herself, and gave her evidence under affirmation by telephone. Ms Vincci Chan, a solicitor with the Department of Human Services, represented the Respondent, also by telephone.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). I took in the Secretary’s Statement of Facts and Contentions dated 16 June 2015, together with Supplementary T-document ST1 Extract from the Australian Health Practitioner Regulation Agency website.
LEGISLATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (the Act).
Section 94 of the Act relevantly prescribes the qualifications for DSP:
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work; ...
A person’s impairment is assessed by reference to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
QUALIFICATION PERIOD
Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) provide that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified.
In this case the date of claim is not immediately apparent. The Respondent submits that the date is 15 April 2014, that being the date entered in the relevant computer record. In its Reasons for Decision the SSAT accepted the date as 24 March 2014. The copy of the claim form has the date 31 March 2014 under the signature of Miss Bishop. Miss Bishop stated that the signature was hers and the date of 31 March 2014 is correct.
I prefer the date shown on the document to a date that has been transcribed on to a computer record. There is no way of verifying the date adopted by the SSAT. I find that the date of Miss Bishop’s claim is 31 March 2014.
Accordingly, I find the qualification period is from 31 March 2014 to 29 June 2014.
ISSUES
The issues are whether, during the qualification period, Miss Bishop:
·had any physical, intellectual or psychiatric impairments; and, if so;
·the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so
·she had a continuing ability to work.
EVIDENCE
Miss Bishop stated that in 2007 she ceased working and had knee replacement operations on her left knee. She said that since that time all her doctors had reported her as being unable to go back to full-time work. Miss Bishop said that she also had problems with her right knee and back.
Miss Bishop said she was involved in a car accident and hurt her back. She has difficulty doing things around the house and can not stand for long periods. She said she also has difficulty shopping and needs a shopping trolley to hang on to.
When asked about her right knee Miss Bishop said she had an arthroscopy on 3 July 2013. She added that about the end of 2014 or beginning of 2015 she had acupuncture and physiotherapy treatment for her back and hips as well as her knees and that everything has been right since.
Ms Chan referred to the report of Dr Duvel dated 1 May 2014 in which he reported about the right knee Surgical treatment – Arthroscopic debridement and possibly replacement. When asked if Dr Duvel had discussed with her the possibility of a right knee replacement Miss Bishop said not that I can recall … my right knee is now fine.
Ms Chan referred to the SSAT Reasons for Decision which recorded Miss Bishop as agreeing that she has to wait for a pain management program. Miss Bishop confirmed that she was still waiting for a program. She added that she has had cortisone injections since 2013 to stabilize her back following the car accident in 2013.
When asked about treatment for her depression and anxiety Miss Bishop said she saw Mr Jacka a couple of times but she did not continue with him as she was becoming more anxious. She said that her prescribed medication was increased after her car accident and she had been taking it ever since.
Miss Bishop agreed with the statement in the report of Dr Duvel dated 1 May 2014 that her conditions of hypertension, bursitis, dyslipidaemia, anxiety and depression were well managed and cause minimal or limited impact on her ability to function.
Ms Chan referred Miss Bishop to the list of Temporary Medical Incapacity Exemptions extracted from Centrelink’s records. Miss Bishop said that the dates listed against CRS Australia Sunshine did not appear correct, however she agreed with the two listed periods of exemptions.
In her submissions Miss Bishop said that she had previously been granted DSP and she cannot understand why it is not being re-instated.
Ms Chan relies on the Secretary’s Statements of Facts and Contentions. She accepts that Miss Bishop has impairments to her left knee, right knee and back, suffers from hypertension, dyslipidaemia and bursitis of the hips, and anxiety all of which impacted on her ability to function during the qualification period. Ms Chan accepts that Miss Bishop satisfies section 94(1)(a) of the Act.
In regard to each impairment Ms Chan contends as follows:
·Left knee – the condition is fully diagnosed, treated and stabilised and there is evidence to support an impairment rating of 10 points; there is no evidence to support a rating of 20 points;
·Right knee – during the qualification period the condition was not fully treated or stabilised as Miss Bishop was still awaiting an arthroscopic debridement;
·Back – during the qualification period the condition was not fully treated and stabilised as Miss Bishop was still awaiting attendance at a pain management program;
·Hypertension, dyslipidaemia and bursitis of the hips – the evidence of Dr Duvel, agreed with by Miss Bishop, is that these conditions are well managed and have minimal impact on her ability to function; and
·Depression/anxiety – during the qualification period the condition was not fully diagnosed, treated and stabilised as it had not been diagnosed by a psychiatrist or clinical psychologist as required by the provisions of Impairment Table 5 Mental Health Function.
Ms Chan contends that as Miss Bishop’s impairments do not attract a total rating of 20 points she does not satisfy section 94(1)(b) of the Act and accordingly she does not qualify for DSP. Ms Chan contends further that Miss Bishop does not have a continuing inability to work (s 94(1)(c)(i)) as she does not have a severe impairment attracting 20 points and has not participated in a program of support for at least 18 months.
TRIBUNAL CONSIDERATIONS
It is conceded by the Respondent, correctly in my opinion, that during the qualifying period Miss Bishop had impairments from the following conditions, which satisfied the requirements of section 94(1)(a) of the Act:
·Left knee;
·Right knee;
·Back pain;
·Hypertension, dyslipidaemia and bursitis of the hips; and
·Depression / anxiety.
The concession is in accordance with the evidence and I find accordingly.
I must now determine whether Miss Bishop’s impairments attract an impairment rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.
Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition is permanent and the impairment is likely to persist for more than two years. Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and stabilised.
Section 6(5) of the Impairment Tables provides that, for a condition to be fully diagnosed and treated by an appropriately qualified medical practitioner, the following considerations apply:
(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.
I will consider each condition in turn.
Left Knee
Ms Chan submitted that the left knee replacement was fully diagnosed, treated and stabilised during the qualification period. She referred to the report of Dr Suka dated 15 February 2010, and the Job Capacity Assessment (JCA) Reports dated 22 August 2012 and 6 June 2013.
I accept the submission is supported by the evidence and find that, during the qualification period, Miss Bishop’s left knee condition was fully diagnosed, treated and stabilised.
In her oral evidence Miss Bishop said that she drives to shopping centres, parks in disabled parking spaces, and uses a shopping trolley when she needs to. This evidence aligns with the following descriptions for a moderate functional impact on activities contained in Impairment Table 3 - Lower Limb Function:
·The person needs to drive to local shops ((1)(a)),
·The person is able to use a motor vehicle and walk around a shopping centre (2), and
·A person who can move around independently using walking aids, in this case a shopping trolley ((3)(b)).
Evidence corroborating a moderate level of impact is contained in the JCA Reports mentioned above and in the report of Dr Duvel dated 10 June 2015.
The relevant descriptions in Table 3 for a severe functional impact are:
·The person is unable to walk around a shopping centre or walk from the carpark into a shopping centre without assistance ((1)(a)), and
·A person who requires assistance to move around using walking aids ((2)(b)).
Miss Bishop does not claim this level of impact and there is no evidence that would support an assessment of a severe functional impact.
From the evidence I find that the functional impact of the left knee condition is moderate and attracts an impairment rating of 10 points.
Right Knee
In her oral evidence Miss Bishop confirmed that she had an arthroscopic examination of her right knee in July 2013. She said that after acupuncture and physiotherapy treatment for all her conditions everything has been fine since … my right knee is now fine.
In his report dated 1 May 2014 Dr Duvel recorded future/planned treatment for the right knee as Surgical treatment – Arthroscopic debridement and possibly replacement.
From the evidence I am not satisfied that the right knee condition has been fully diagnosed and I find accordingly. As the condition is not fully diagnosed it is not permanent in the terms of section 6(3) of the Impairment Tables and can not be assigned an impairment rating.
Back Pain
Ms Chan submitted that the condition of back pain is not fully diagnosed, treated and stabilised. In her written submissions Ms Chan referred to the report of Dr Duvel dated 1 May 2014 in which he recorded future/planned treatment as pain management – possibly surgical. In her oral submissions Ms Chan referred to the SSAT Reasons for Decision which recorded at paragraph 21 Miss Bishop said that she had been referred for further specialist assessment for a pain management program, but she missed the appointment. She now has to wait for a further appointment. In her oral evidence Miss Bishop confirmed that she was still waiting for a pain management program.
In his report dated 10 June 2015Dr Duvel recorded that this condition was fully diagnosed but in regard to treatment he wrote We are awaiting appointments from the pain management clinics.
From the evidence I find that the back pain condition is fully diagnosed but not yet fully treated and stabilised. As a result the condition is not permanent in the terms of section 6(3) of the Impairment Tables and can not be assigned an impairment rating.
Hypertension, Dyslipidaemia and Bursitis of the Hips
Ms Chan submitted that these conditions were not fully diagnosed, treated or stabilised. She referred to the report of Dr Duvel dated 1 May 2014 in which he recorded these conditions as being generally well managed and causing minimal or limited impact on ability to function. In her oral evidence Miss Bishop agreed with this assessment by Dr Duvel.
Dr Duvel’s report shows that the conditions have been identified in the case of Miss Bishop. I accept this as evidence that they have been diagnosed. I also accept that as the conditions are well managed and they cause minimal or limited impact on ability to function that they are fully diagnosed, treated and stabilised. I find accordingly.
As the conditions cause minimal or limited impact on Miss Bishop’s ability to function I find that they attract a zero impairment rating.
Depression / Anxiety
Ms Chan submitted that during the qualification period Miss Bishop’s depression was not diagnosed by a psychiatrist or clinical psychologist and, as a result, the condition was not fully diagnosed.
The Introduction to Impairment Table 5 − Mental Health Functions states:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
Diagnoses of depression are recorded by:
·Dr Suka;
·Dr Varane; and
·Dr Duvel
None of these doctors has qualifications in the area of mental health.
Miss Bishop was seen twice by Mark Jacka, a registered psychologist. Mr Jacka’s qualifications are not those of a psychiatrist or clinical psychologist.
Miss Bishop was first diagnosed with a major depressive disorder by a consultant psychiatrist, Dr Herur, in February 2015. February 2015 is not within the qualification period.
From the evidence I find that, during the qualification period, the condition of depression and anxiety was not diagnosed by a psychiatrist or an appropriately qualified medical practitioner with evidence from a clinical psychologist. I find that the condition was not diagnosed as required by the provisions of Impairment Table 5. Accordingly, Miss Bishop’s depression cannot be considered as fully diagnosed and as a result it cannot be assigned an impairment rating.
Total Impairment Rating
I have found that impairment ratings cannot be assigned to the conditions of right knee, back pain, hypertension, dyslipidaemia and bursitis of the hips and depression / anxiety. I have found that the condition of left knee attracts an impairment rating of 10 points. As a result, the total impairment rating for Miss Bishop’s impairments is 10 points.
CONCLUSION
The total impairment rating is less than the 20 points required to satisfy section 94(1)(b) of the Act. In order to satisfy section 94(1) of the Act, all the sub-sections must be satisfied. Miss Bishop does not satisfy the requirements of section 94(1)(b) of the Act. As a result, she cannot satisfy all the provisions of section 94(1) of the Act and there is no need for me to consider the other sub-sections of section 94(1).
The result is that during the qualification period Miss Bishop was not qualified for DSP and I find accordingly.
This finding relates to Miss Bishop’s condition in June 2014. If Miss Bishop feels that her conditions have changed since that time she is at liberty to submit a further application to Centrelink for DSP. The February 2015 diagnosis of depressive disorder may be relevant to any new application.
DECISION
I affirm the reviewable decision.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision of Mr Conrad Ermert. ..........................[sgd].......................................
Associate
Dated 31 July 2015
Date of hearing 13 July 2015 Applicant In person Advocate for the Respondent Ms V Chan Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Impairment Rating
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Permanent Impairment
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Continuing Inability to Work
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