Brandley and Secretary, Department of Social Services (Social services second review)
[2021] AATA 3562
•6 October 2021
Brandley and Secretary, Department of Social Services (Social services second review) [2021] AATA 3562 (6 October 2021)
Division:GENERAL DIVISION
File Number: 2020/4312
Re:Pamela Brandley
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member B Cullen
Date:6 October 2021
Place:Brisbane
The Tribunal affirms the decision under review.
..................................[SGD].....................................
Member B Cullen
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions permanent – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
Gallacher v Secretary, Department of Social Services [2015] FCA 1123REASONS FOR DECISION
Member B Cullen
6 October 2021
BACKGROUND AND CLAIM HISTORY
On 20 November 2019 Ms Brandley (the Applicant) lodged a claim for Disability Support Pension (‘DSP’) with the Respondent, describing her medical condition as:
Back injury L3 L4 L5. Worn degenerative spondalitus [sic] [spondylosis] and nerve damage. Diabetic. Suicidal. Psychotic episode 23.07.19 as a result of antidepressant medication. Depression. (T13 at 120).[1]
All references to Exhibit 1, which is the T Documents before the Tribunal. The relevant T Document number and page reference is provided in the in-line text.
On 27 November 2019, a Rehabilitation Counsellor assessed the Applicant’s file for the purposes of a DSP Medical Eligibility Assessment Recommendation. According to the assessor, there was insufficient evidence to assess the Applicant’s medical eligibility for DSP. The assessor did not recommend any further assessment, and said the following (T14 at 127-128):
·in respect of the Applicant’s spinal conditions, there was no medical evidence within the last 2 years of treatment, prognosis or impairment;
·in respect of the Applicant’s mental health condition, there was no medical evidence of a diagnosis confirmed by a psychiatrist or clinical psychologist, or current medical evidence of treatment, impact or prognosis; and
·in respect of the Applicant’s diabetes, there was no current evidence of treatment, impact or prognosis.
On 12 December 2019, the Applicant provided the following additional medical evidence:
·a pelvic ultrasound report dated 14 September 2011 (T16 at 135);
·an Ambulance Report Form regarding left hip pain dated 24 May 2012 (T16 at 136);
·an Ambulance Report From regarding emotional problem dated 31 August 2013 (T16 at 142);
·Clinical notes from Emergency Department Admission for abdominal pain dated 20 August 2015 (T16 at 145);
·Discharge Summary notes from Emergency Department admission for depression and chronic suicidal ideation dated 16 October 2016 (T16 at 147-148);
·an Ambulance Report Form regarding chest pain dated 17 November 2016 (T16 at 149);
·Discharge Summary notes from Emergency Department admission for suicidal ideation dated 4 May 2017 (T16 at 154-155).
·Emergency Department Clinical Notes for presentation for scripts, poorly controlled blood sugar levels, dated 11 July 2017 (T16 at 157);
·Emergency Department Clinical Summary regarding Oxazepam overdose, dated 8 December 2017 (T16 at 159);
·an MR Brain report for presentation of psychosis, dated 29 July 2019 (T16 at 167); and
·a letter dated 9 August 2019, from Bayside Authorised Mental Health Service to advise the Applicant her treatment authority under the Mental Health Act 2016 was revoked (cancelled) on 9 August 2019 (T16 at 162).
Following receipt of this additional evidence, a further DSP Medical Eligibility Assessment was undertaken, resulting in a recommendation that the Applicant was “manifestly medically ineligible” (T17 at 169).
As a result of the further DSP Medical Eligibility Assessment recommendation, the Respondent rejected the Applicant’s claim for DSP on 14 December 2019 (T18 at 171).
Following the rejection, a further DSP Medical Eligibility Assessment was conducted by an Authorised Review Officer (“ARO”), whose professional discipline is listed as a psychologist, as the Applicant had requested a review of the decision by the Respondent to deny her claim (T19 at 173).
The Applicant then provided additional medical evidence relating to her hospitalisation following a psychotic episode in July 2019 to the Respondent (T20 at 176-183).
The ARO recommended that a Job Capacity Assessment be conducted. The Job Capacity Assessment was conducted via telephone on 17 February 2020, by an accredited exercise physiologist (T21 at 184-185)
The Job Capacity Assessor (JCA) found that:
·the Applicant’s diabetes and spondylosis were not fully diagnosed, treated and stabilised due to insufficient recent corroborating evidence pertaining to diagnosis, treatment and functional impact (T21 at 185-186);
·the Applicant’s depression was diagnosed, but there was insufficient evidence to demonstrate the condition is fully treated and stabilised (T21 at 187); and
·the Applicant’s work capacity, with intervention, was 15-22 hours per week (T21 at 190).
The Applicant’s General Practitioner, Dr Prabakar, then spoke with the ARO to provide additional information (T2 at 24) and the Applicant also provided further medical reports and imaging from 2011 and 2012 relating to her spinal condition (T23 at 194).
On 20 April 2020, the ARO affirmed the decision to reject the Applicant’s claim for DSP and outlined the reasons for the decision (T26/205).
On 22 April 2020, the Applicant lodged an application for review with the Social Services and Child Support Division (‘SSCSD’) of the Tribunal. On 15 June 2020 the SSCSD rejected the Applicant’s DSP claim and affirmed the ARO’s decision (T2 at 7-13).
In affirming the ARO’s decision, the SSCSD Member found the following:
·the Applicant’s cervical and lumbar spondylosis was not fully treated and stabilised, as there was insufficient evidence to be satisfied that all reasonable treatment had been undertaken (T2 at 10-11);
·the Applicant’s diabetes was not fully treated or stabilised as there was insufficient current evidence to confirm past, current or future treatment, and no evidence about the functional impacts of the condition (T2 at 12); and
·the Applicant’s psychotic depression was not fully treated and stabilised, as the Tribunal was not satisfied she had undergone all reasonable treatments, and considered that there was insufficient evidence about the current status of this condition (T2 at 13).
On 10 July 2020, the Applicant applied to this Tribunal for a review of the SSCSD’s decision (T1 at 1–2).
The Applicant has filed the following additional evidence in the Tribunal:
·Report of Sarah Raftery, Occupational Therapist, dated 3 July 2020 (Attachment A to the Respondent’s Statement of Facts, Issues and Contentions); and
·Report of Dr Ian Butler, dated 5 January 2021 (Attachment B to the Respondent’s Statement of Facts, Issues and Contentions); and
·An undated opinion from Dr Ian Butler in relation to the Applicant’s spinal condition (Attachment C to the Respondent’s Statement of Facts, Issues and Contentions).
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the ‘Act’), the Social Security (Administration) Act 1999 (Cth) (the Administration Act), and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (‘the Determination’).
Section 94(1) of the Act requires that the Applicant meet several requirements to qualify for DSP (‘Section 94 Requirements’):
·The Applicant must have a physical, intellectual, or psychiatric impairment.
·The impairment is considered permanent.
·The Applicant’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘Determination’).[2]
·The Applicant must have a continuing inability to work.
[2] A legislative instrument made under the Act: see s 26(1).
The date for determining whether the Applicant meets the Section 94 Requirements is the date of her claim (20 November 2019), unless the Applicant becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[3] Therefore, in order to qualify for DSP, the Applicant must have met the Section 94 Requirements between 20 November 2019 and 19 February 2020 (‘Qualification Period’).
[3] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration)
Act 1999 (Cth).
In making a decision about whether the Applicant meets the Section 94 Requirements, the Tribunal can only consider medical evidence that relates to the functional impact of the Applicant’s impairments after the Qualification Period to the extent that it “casts light on” the functional impact of the impairments within the Qualification Period.[4]
DID THE APPLICANT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)?
[4] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]
and on appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
What is an Impairment?
The Determination contains the rules for applying the Impairment Tables and defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[5]
[5] Determination, s 3.
Conclusion on Impairments
At the hearing, and in its Statement of Facts and Contentions, the Respondent accepted that the Applicant had impairments (diabetes, a mental health condition, and a spinal condition) which satisfied section 94(1)(a) of the Act during the Qualification Period.[6]
[6] Secretary’s Statement of Facts and Contentions dated 17 June 2020, paragraph 38.
Considering the above evidence, the Tribunal finds that during the Qualification Period the Applicant had diabetes, a mental health condition, and a spinal condition which are impairments for the purposes of the Act. Therefore, the requirement in section 94(1)(a) of the Act has been met.
DO THE APPLICANT’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[7] They are function based[8] and designed to assign ratings to determine the level of functional impact of impairment (Impairment Rating) and not to assess conditions.[9]
[7]Determination ss 4(2) and 5(2)(a).
[8] Determination, s 5(2)(b) and (c).
[9] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[10]
·the condition causing that impairment is “permanent”; and
·the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[10] Determination, see s 6(3).
The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[11]
[11] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2014] FCA 368, at [12].
The Applicant’s conditions can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[12]
·the condition has been fully diagnosed by an appropriately qualified medical practitioner;
·the condition has been fully treated;
·the condition has been fully stabilised; and
·the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[12] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[13] the following is to be considered:[14]
·whether there is corroborating evidence of the condition; and
·what treatment or rehabilitation has occurred in relation to the condition; and
·whether treatment is continuing or is planned in the next 2 years.
[13] For the purposes of ss 6(4)(a) and (b) of the Determination.
[14] Determination, see s 6(5).
A condition is fully stabilised[15] if:[16]
(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;[17] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[15] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[16] Determination, see s 6(6).
[17] For reasonable treatment see s 6(7) of the Determination.
In relation to the Applicant’s impairments, the Respondent’s position at hearing was that although the impairments were fully diagnosed during the Qualification Period, they were not fully treated and stabilised. For this reason, the Respondent’s position was that the Tribunal should not go on to assign impairment ratings using the Impairment Tables.
The Tribunal must consider the Applicant’s medical history, and the evidence given by her at hearing, in order to make a decision about whether each impairment was fully treated and stabilised.[18]
The Applicant’s Medical Conditions
[18] Determination, see s 6(2).
Diabetes
The medical evidence before the Tribunal in relation to the Applicant’s Insulin Dependent Diabetes Mellitus (IDDM) is summarised in the table following:
Date
Doctor/Reference
Substance of Report
22 September 2015
Dr Cameron Report (T6 at 75)
Lists IDDM as a condition causing minimal/limited functional impact. the Applicant states she had condition for past 12-years.
Management up and down, depending on the Applicant’s mental state.
28 January 2016
Job Capacity Assessor (T8 at 84)
Remarks include: “Current medical evidence Dr Cameron, dated 22/9/2015, notes IDDM. The customer confirmed that the conditions is chronic, well managed and has no./minimal impact on function. It is therefore assessed as permanent and fully diagnosed, treated and stabilised.”
17 February 2020
Job Capacity Assessor Report, prepared by Accredited Exercise Physiologist (T21 at 185)
Remarks include: “Claimant report at JCA: glucose levels are reasonable, is unable to drive if reading is less than 5, has been seeing a diabetic educator for years…”
“This condition is not considered fully diagnosed, treated and stabilised due to insufficient corroborating medical evidence (less than 24 months old) pertaining to diagnosis, treatment (current/past/planned), symptoms and functional impact.”
4 March 2020
ARO Conversation with the Applicant’s current GP, Dr Prabakar (T26 at 206-212)
ARO reports that Dr Prabakar indicated diabetes was poorly controlled, and there is evidence of renal impairment (kidneys are affected) and eyes are affected. Dr Prabakar reported the Applicant needs to be assessed for diabetes management.
5 January 2021
Report Dr Butler (T Documents, Attachment C)
Says Type 2 Diabetes first diagnosed in 1998. Noted the Applicant’s blood sugar levels are very elevated and she has protein in her urine, so was waiting to see a nephrologist. Due to the Applicant’s anxiety, diabetes management becomes impaired.
The Respondent accepts that the Applicant’s Insulin Dependent Diabetes Mellitus (IDDM) condition was fully diagnosed the Qualification Period. The Tribunal finds, on the basis of Dr Cameron’s 2015 diagnosis, that the Applicant’s Insulin Dependent Diabetes Mellitus (IDDM) condition was therefore fully diagnosed at the time of her claim for DSP.
Was the diabetes condition fully treated and stabilised?
The Respondent’s position in relation to the Applicant’s IDDM condition is that there is insufficient evidence relevant to the Qualification Period to determine that it was fully treated and stabilised. Alternatively, the Respondent submits that the condition has been poorly managed, and therefore cannot be found to have been fully treated and stabilised.
The Applicant says that she has had diabetes for a very long time, has had regular blood tests, and taken medication as prescribed. Therefore, she says that she was doing what was expected of her in relation to her diabetic condition.
As set out in the chart above, the evidence from Dr Prabakar dated 4 March 2020, expresses a view that the Applicant’s diabetes was poorly controlled and required management. This evidence falls just outside the Qualification Period (which ended on 19 February 2020).
At the hearing, the Applicant gave evidence about the impact of the diabetes on her life, as well as evidence about her personal circumstances. She has had some struggles in life, including periods of living in her car, staying in short term living arrangements, unemployment, and the challenges of access to care while living regionally.
The Tribunal understands that these challenges would make a routine and structured management process of the nature referenced by Dr Prabakar to be difficult. The Tribunal is not critical of the Applicant and appreciates that she has continued to take medication as she feels she needs to.
Although the Applicant reported to the JCA that she had been seeing a diabetic educator, the JCA concluded that the condition was not treated and stabilised as there was insufficient supporting evidence. The evidence before the Tribunal from Dr Prabakar suggests that more was required to control and manage the condition. The taking of medication is one part of a management program. Although well outside the Qualification Period, the more recent 5 January 2021 report of Dr Butler lends weight to the view expressed by Dr Prabakar that more is needed to be done to manage blood sugar levels and related kidney issues.
The Tribunal considers that adherence to recommended treatment (diabetes management that regulates sugar levels and urine protein levels) could result in significant functional improvement of the Applicant’s diabetes.
On the basis of the evidence available to it, the Tribunal finds that the Applicant’s IDDM was not fully treated and stabilised in the Qualification Period. Given this finding, the Tribunal cannot assign an impairment rating to the IDDM condition under the Impairment Tables.
Mental Health
The medical evidence before the Tribunal in relation to the Applicant’s mental health condition is summarised in the table following.
Date
Doctor/Reference
Substance of Report
31 August 2013
Ambulance Report (T16 at 142)
Reports psychological intervention for ‘non suicidal alert’, with assessment of “depression”.
22 September 2015
Dr Cameron Report (T6 at 72-73)
Lists diagnosis of recurrent major depression / anxiety, with onset some 6 years prior.
Current treatment included Zoloft of 100mg and Alepam (Oxazepam 15mg).
Past treatment noted, “Pam saw [a] support worker” (T6/73).
Future treatment noted that no specialist consultation was planned.
16 October 2016
Discharge Summary (T16 at 147-148)
Presentation at Emergency Department with “depression and chronic suicidal ideation”’. Principal diagnosis listed as “depression”.
Dr Gottke recommended GP follow up for a GP mental health care plan, and referral was sent to community health.
4 May 2017
Discharge Summary (T16 at 154-155)
Presentation at Emergency Department, diagnosis “suicidal ideation”.
the Applicant was provided with a prescription for Sertraline 100mg, with a recommendation for her GP to follow up with the mental health team.
Noted that the Applicant was previously on Sertraline but had ceased 4 weeks prior as her prescription had run out and she had no regular GP.
11 July 2017
Emergency Department Clinical Summary (T16 at 157)
The Applicant presented at Kingaroy Heath Service Emergency to obtain scripts including Zoloft.
8 December 2017
Emergency Department Clinical Summary (T16 at 159-160)
Presentation at Emergency Department for Oxazepam overdose and suicidal intent.
Psychology Registrar recommended seeing GP for a psychology referral.
Notes list medications as Novomix, Diabex, and Oxazepam. No anti-depressants listed.
9 August 2019
Reports and notes from inpatient admission (T20 at 179-180)
Diagnosis of psychotic depression. Includes notification to the Applicant dated 9 August 2019 to advise that a Treatment Authority under the Mental Health Act 2016 had been revoked.
Report notes conversation with the Applicant’s daughter: “Daughter notes that she was more stable when taking regular Sertraline, she has been prone to angry verbal and physical outbursts when not on it. Daughter notes she has been slowly weaning herself off the medication and had not taken her medications for a week prior to admission”.
Report indicated a discussion would take place following day with the Applicant regarding recommencement of Sertraline.
4 March 2020
ARO Conversation with The Applicant’s current GP, Dr Prabakar (T24 at 202-203)
Dr Prabakar advised the Agency that she had organised a psychiatrist consultation for the Applicant on 24 March 2020, and that she was on a waiting list for a psychologist.
Dr Prabakar opined that further investigation was needed as the diagnosis of schizophrenia following the July 2019 episode was disputed.
20 April 2020
ARO Notes (T26 at 210-211)
ARO spoke with the Applicant, who advised she had come off her Zoloft medication (Sertraline) before her psychotic episode in July 2019, and was waiting to see a psychologist.
The Applicant reported to ARO that she had not seen any specialists since the July 2019 episode, other than a phone call with a psychiatrist.
15 June 2020
SSCSD Reasons for Decision, Member B Grehan (T2 at 12)
Decision Record reflects that the Applicant gave evidence that she had come off medication on 24 July 2019.
The Applicant confirmed she had one phone call from a psychiatrist and was due for another appointment.
5 January 2021
Report of Dr Butler (T Documents, Attachment C)
Notes depression onset in 2014, and that the Applicant has “chronic anxiety with a past history of psychosis – Pamela has been under the care of our psychiatrist Dr Anjali Sainani”
The introduction to the Impairment Tables requires that a diagnosis of a mental health condition is made by an appropriately qualified medical practitioner (for example, a psychiatrist). Where a diagnosis has not been made by a psychiatrist, it is to be supported by evidence from a clinical psychologist.
The Respondent accepts that the Applicant’s Mental Health condition was fully diagnosed during the Qualification Period, as Dr Anjali Sainani (a psychiatrist) was involved in the August 2019 diagnosis of psychotic depression.
Therefore, the Tribunal finds that the Applicant’s Mental Health condition was fully diagnosed at the time of her claim for DSP.
Was the mental health condition fully treated and stabilised?
The Respondent’s position in relation to the Applicant’s mental health condition is that it was not fully treated and stabilised during the Qualification Period.
The Applicant told the Tribunal that she has had longstanding mental health issues, and that she was never given any regular psychology sessions. She says that she only got one phone call from Mental Health, and that they did not tell her to come in for an appointment. She also says that she lives in a country town with limited mental health options. She confirms that at some point after her August 2019 hospitalisation, she stopped taking medication. She says that she was, “too scared to go see the psychiatrist, because I thought they were going to lock me up“. The Applicant also confirmed that she was still waiting to see a new psychiatrist, having been put on a waitlist.
The Respondent’s legal representative asked the Applicant about her mental health treatment at the hearing:[19]
Respondent’s Representative: So would you agree that in the Qualification Period, so when you claimed in November 2019 until February 2020, you were still waiting for review by a psychiatrist and a psychologist at that time?
The Applicant: Yes.
Respondent’s Representative: Okay?
The Applicant: Well, I went - I went to - I went to one psychologist earlier, but he was, like, in his twenties, and I didn't - I said to my doctor at the time, "He's way too young to hear what I have got to say," and I wouldn't - I wouldn't - I couldn't speak to him, and then he sort of said, because I was older and being Indigenous, he said, "Okay, we will just, like, finish it there and then," and then I said - I said to the doctor then I need another psychiatrist, but I need an older one, not - not a young babe, because I - yes. Just - yes. Because he was, he was only, like, in his twenties, which I didn't feel comfortable talking to a young boy in his twenties at all.
[19] Transcript of Proceedings, page 24.
Although the Tribunal appreciates that obtaining mental health treatment may have been challenging for the Applicant, and further understands that she may not want to engage with younger professionals as she explained to the Tribunal, it is clear that numerous recommendations have been made for her to access treatment. There is no evidence before the Tribunal indicating that she has followed through with the following recommendations:
·16 October 2016 - Dr Gottke’s recommendation for GP follow up and a GP mental health care plan and community health referral (T16 at 148);
·4 May 2017- Recommendation for GP follow up with mental health team (T16 at 154-155);
·9 December 2017 – Psychology Registrar’s recommendation to see GP for psychology referral (T16 at 159-160); and
·9 August 2019 – Discussion concerning recommencement of Sertraline (T20 at 180).
When the lack of evidence in relation to referral follow-up is coupled with the Applicant’s own evidence that she is still waiting to see a psychiatrist/psychologist, and is also reluctant to engage with treatment in some respects, it is difficult to conclude that the Applicant has been able to progress her own treatment in accordance with the medical recommendations that have been made to her.
The Tribunal considers that adherence to recommended treatment (psychiatric/psychology therapy and adherence to an anti-depressant regime) could result in significant functional improvement of the Applicant’s mental health condition.
On the basis of the evidence available to it, the Tribunal finds that the Applicant’s mental health condition was not fully treated and stabilised in the Qualification Period. Given this finding, the Tribunal cannot assign an impairment rating to the IDDM condition under the Impairment Tables.
Spinal condition
The medical evidence before the Tribunal in relation to the Applicant’s spinal condition is summarised in the table following:
Date
Doctor/Reference
Substance of Report
9 August 2012
Dr Cooke, Orthopaedic Surgeon’s Report (T23 at 196)
Confirmed degenerative osteoarthritic changes in the L4/5 and L5/S1 apophyseal joints.
Reported “she complains of persisting pain which she localises to her left buttock just lateral to the posterior iliac spine. She says the pain is there day and night, disturbs her sleep and is exacerbated by most physical activities…She exhibits reasonable range of active movements of her lumbosacral spine, complaining of pain towards the extremes of extension and lateral rotation to the left. She also exhibits some painful restriction of moments of her left hip with both internal and external rotation restricted with loss of some 30% of the expected ranges of movement in all directions”.
22 September 2015
Dr Cameron, Orthopaedic Surgeon’s Report (T6 at 69-70)
Confirmed spondylosis of the cervical and lumbar spine facet joints.
Noted “LBP [lower back pain], bilateral sciatica, reduced ROM, tingling left foot, neck pain and stiffness”.
26 April 2016
General Practitioner Dr Tong’s Report (T10 at 92-93)
Confirmed spondylosis of lumbar/cervical spine.
Noted “lower back pain, bilateral sciatica, decreased ROM, tingling down legs, neck pain and stiffness”.
The Applicant to continue with physiotherapy and analgesia.
15 June 2020
SSCSD Reasons for Decision, Member B Grehan (T2 at 11)
Decision Record reflects that the Applicant gave evidence that she had not continued physiotherapy.
17 February 2020
Job Capacity Assessor Report, prepared by Accredited Exercise Physiologist (T21 at 186)
The Applicant reported that her “back pain is now under control as she is resting and is no longer working, condition is exacerbated by heavy lifting (ie carrying grocery bags), not taking any current prescribed medications (i.e. pain relief), has taken herself off all medications, no plans for specialist consultation, no current physio or allied health treatment…”
4 March 2020
ARO Conversation with the Applicant’s current GP, Dr Prabakar (T24 at 203)
Dr Prabakar advised the Agency that the Applicant’s spinal condition causes “no major impacts, no nerve damage”.
5 January 2021
Report Dr Butler (T Documents, Attachment C)
Confirms impact of osteoarthritis in the Applicant’s shoulders, cervical spine and lumbar spine.
Concludes condition has been fully investigated and managed and a recent CT scan of lumbar spine does not show any nerve compression that would be amenable to surgery.
The Respondent accepts that the Applicant’s spinal condition was fully diagnosed during the Qualification Period. Therefore, the Tribunal finds that the Applicant’s spinal condition was fully diagnosed at the time of her claim for DSP.
Was the spinal condition fully treated and stabilised?
The Respondent’s position in relation to the Applicant’s spinal condition is that there is insufficient medical evidence to enable the Tribunal to find that the condition was fully treated and stabilised during the Qualification Period.
The Applicant told the Tribunal it was recommended that she participate in physiotherapy and hydrotherapy. At first, she did try to participate in physiotherapy, but said that this “didn’t work,” and “irritated it more”. Dr Cooke then suggested that she participate in hydrotherapy, and she went to see an ex-Olympian who gave her some exercises. She was able to attend two visits, but then unfortunately ran out of money to continue participating in sessions.
It is important to bear in mind the Qualification Period (20 November 2019 and 19 February 2020) in making a decision about whether the Applicant’s spinal condition was fully treated and stabilised for the purposes of meeting the Section 94 Requirements.
Dr Butler’s 5 January 2021 Report expressing a view that the spinal condition is not amenable to surgery and has been “fully investigated and managed” falls well outside the Qualification Period. Although it is not relevant to the Tribunal’s considerations in this matter, for the sake of completeness, the Tribunal heard evidence from the Applicant that she has made a new claim for DSP on 30 April 2021, following Dr Butler’s 5 January 2021 report. At the time of hearing, the new claim was still being considered.
There is an absence of medical evidence before the Tribunal relating to the Applicant’s spinal condition relevant to the Qualification Period. The last available medical evidence regarding this condition is from Dr Tong and is dated 26 April 2016. This is more than three years prior to the date of the Applicant’s claim for DSP (20 November 2019).
The Tribunal acknowledges that Dr Tong’s report falls outside the 2-year period referenced in the Social Security Guide at 3.6.3.05[20]:
Generally, medical evidence from the previous 2 years should be used, however, if the medical evidence is not recent, it may still be useful depending on the person's condition and whether the information is representative of the person's current level of impairment.
Explanation: Medical evidence that is older than 2 years may still be of value if the condition remains unchanged since the time the evidence was issued - for instance a condition has been present from birth or early childhood, or is never likely to change (e.g. amputation of a limb).
[20]See particularly at 3.6.1 DSP Qualification and Payability; 3.6.2 Assessment for DSP; 3.6.3 Guidelines to the Tables for the Assessment of Work related Impairment for DSP and 6.2.5 Application of DSP Qualification Rules at Review.
Dr Tong’s 2016 Report indicated that the Applicant was to continue with physiotherapy and analgesia (T10 at 93). The Applicant gave evidence to the SSCDS Tribunal, consistent with the evidence that she gave at the hearing of this matter, that she had ceased physiotherapy.
The Tribunal appreciates that there are costs associated with obtaining physical therapy and hydrotherapy. However, it is important that applicants for DSP adhere to the recommendations of their treating medical professionals. This is because the Tribunal, in considering whether a condition is “fully treated” and “fully stabilised” for purposes of the Section 94 Requirements is obliged to consider whether the course of treatment recommended has been adhered to. If it has not been, then it is unlikely that the Tribunal will be able to decide that the condition has been fully treated and stabilised, as the purpose of the medical advice is to try and assist the patient in progressing their treatment in optimal fashion.
Therefore, while the Tribunal has heard what the Applicant has said about not being able to afford the physiotherapy and hydrotherapy, it cannot find that she has complied with the most recent recommendations made to her. Here, the most recent recommendation is from Dr Tong. In the absence of any more recent advice from the Applicant’s medical professionals, the Tribunal concludes that Dr Tong recommended physiotherapy and the Applicant ceased that treatment without confirmation from any treating professionals that she should do so.
The Tribunal considers that adherence to recommended treatment (physiotherapy/hydrotherapy and analgesics) could result in significant functional improvement of the Applicant’s spinal condition.
For this reason, the Tribunal finds that the Applicant’s spinal condition was not fully treated and stabilised in the Qualification Period. Given this finding, the Tribunal cannot assign an impairment rating to the IDDM condition under the Impairment Tables.
CONCLUSION
Having made the decision that none of the conditions were fully treated and stabilised in the Qualification Period, the Tribunal is unable to assign any of the conditions an Impairment Rating.
The Tribunal considers that the Applicant was open in responding to questions from both the Tribunal and the Respondent’s legal representative about the impact her conditions have had on her daily activities and well-being. The Tribunal respects that giving evidence of a personal nature can be a stressful and sensitive process for applicants.
DECISION
The Applicant’s claim fails because her impairments did not attract 20 or more points under the Impairment Tables, therefore, she did not qualify for DSP during the Qualification Period under section 94(1)(b) of the Act.
The decision under review is affirmed.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Member B Cullen.2020/4312
.................................[SGD]..................................
Associate
Dated: 6 October 2021
Date of hearing: 21 July 2021 Applicant:
Solicitors for the Applicant:
By Phone
Ms Michelle Cornish
Services Australia
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Appeal
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