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

[2017] AATA 253

Brittain and Secretary, Department of Social Services (Social services second review) [2017] AATA 253 (28 February 2017)

Division:GENERAL DIVISION

File Number:           2016/2382

Re:Joanne Brittain

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P E Nolan

Date:28 February 2017

Place:Brisbane

The Tribunal affirms the decision under review.

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Senior Member P E Nolan

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – shoulder condition – back condition – lower limb condition – mental health condition - morbid obesity – whether 20 points under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDAT MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

REASONS FOR DECISION

Senior Member P E Nolan

28 February 2017

INTRODUCTION

1. On 19 May 2015 Ms Brittain (the “Applicant”) lodged a claim, to the Department of Social Services, for the Disability Support Pension (“DSP”),[1]

   [1] Exhibit 1, T Documents, T8, pages 104-133, Claim for DSP.

2. Her claim was rejected, on 3 August 2015, on the grounds that the Applicant did not meet the 20 points or more requirement under the Impairment Tables.[2]

   [2] Exhibit 1, T Documents, T10, page 142, Rejection of Claim for DSP.

3. The Applicant unsuccessfully sought a review of that decision by an Authorised Review Officer (“ARO”).[3] She subsequently sought a first tier review of the Administrative Appeals Tribunal’s Social Services and Child Support Division (“AAT1”) and, in a decision dated 23 March 2016, was again unsuccessful.

   [3] Exhibit 1, T Documents, T15, pages 174-180, Decision and Notes of Authorised Review Officer.

4. The Applicant has applied for a second tier review of the Administrative Appeals Tribunal’s General Division, this Tribunal (the “Tribunal”) on 5 May 2016.[4]

   [4] Exhibit 1, T Documents, T1, pages 1-5, Application for Review of Decision.

5. The central issue for this Tribunal to consider is whether the Applicant is qualified to receive DSP in relation to her claim made on 19 May 2015 or within thirteen weeks thereof.

6. The Applicant needs to establish pursuant to s 94 of the Social Security Act1991 (the “Act”) that:

   (i)she had a physical, intellectual or psychiatric condition/s;

   (ii)the condition/s are fully diagnosed, treated and stabilised;

   (iii)the condition/s attract a rating of 20 points under the Impairment Tables;

   (iv)she has a continuing inability to work.

   LEGISLATIVE FRAMEWORK

7. As I have outlined above the criteria for DSP is set out in s 94 of the Act. In this case the Secretary, for the Department of Social Services (the “Respondent”), accepts that the Applicant has impairment for the purposes of s 94(1)(a) of the Act.[5]

   [5] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 4 [18].

8. Section 26(1) of the Act provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for DSP. In accordance with s 27 of the Act the tables to be applied are contained in the Impairment Tables which took effect on 1 January 2012.

9. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the “Determination”) contains rules for the application of the Tables. The Tables are function based rather than diagnosis based and describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions.

10. ‘Impairment’ is defined to mean a loss of function or capacity affecting a person’s ability to work that results from the person’s condition. A person’s Impairment is to be assessed on the basis of what the person can or could do not on the basis of what the person chooses to do or what others do for the person.[6]

    [6] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(1).

11. The Impairment Tables may only be applied after a person’s medical history has been considered (s 6(2) of the Determination). An Impairment Rating can only be assigned in respect to the person’s functional impairment if the condition is permanent i.e. fully diagnosed, treated and stabilised and likely to persist for more than two years.[7]

    [7] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(3)-(7).

12. In determining whether a condition has been fully diagnosed and fully treated the following must be considered:

    (i)Whether there is corroborating evidence of the condition;

    (ii)Where treatment or rehabilitation has occurred in relation to the condition;

    (iii)Whether treatment is continuing or is planned for the next two years.[8]

    [8] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(5).

13. A condition is fully stabilised if either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next two years; or the person has not undertaken reasonable treatment for the condition and either: significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or there is a medical or other compelling reason for the person not to undertake reasonable treatment.

14. If the condition is not permanent within the meaning of s 6(4) of the Determination it is incapable of being assigned a rating under the Impairment Tables this includes assigning a rating of 0 points. The existence of a fully diagnosed, treated and stabilised condition will not necessarily result in a rating being assigned under the Tables. Where an Impairment has no functional impact it would not attract any Impairment Points (the Determinations s 6(8)).

15. Section 10(5) and 10(6) of the Determination provide where two or more conditions cause a common or combined impairment a single rating should be assigned and that it is inappropriate to assign a separate rating for each condition.

    BACKGROUND AND CONSIDERATION

16. The non-contentious facts are as follows:

    (i)On 19 May 2015 the Applicant lodged a claim for DSP;[9]

    (ii)On 29 June 2015 a Job Capacity Assessor (“JCA”) conducted a face-to-face assessment with the Applicant and subsequently produced a Job Capacity Assessment Report (the “JCA report”) on 3 August 2015;[10]

    (iii)On 3 August 2015 the Applicant’s claim for DSP was rejected by the original decision maker;[11]

    (iv)On 9 October 2015 the ARO affirmed the Decision to reject the Applicant’s claim for DSP;[12]

    (v)On 23 March 2015 the AAT1 affirmed the Department’s Decision to reject the Applicant’s claim for DSP;[13]

    (vi)On 5 May 2016 the Applicant lodged a further appeal with this Tribunal for a second review of the Decision to reject her claim for DSP.[14]

    [9] Exhibit 1, T Documents, T8, page 104, Claim for DSP dated 19 May 2015.

    [10] Exhibit 1, T Documents, T9, page 134, Job Capacity Assessment Report dated 3 August 2015.

    [11] Exhibit 1, T Documents, T10, page 142, Rejection of Claim for DSP dated 3 August 2015.

    [12] Exhibit 1, T Documents, T15, page 174, Decision and Notes of Authorised Review Officer dated 9 October 2015.

    [13] Exhbiti 1, T Documents, T2, page 6, Decision of Administrative Appeals Tribunal (SS&CSD) dated 23 March 2016.

    [14] Exhibit 1, T Documents, T1, page 1, Application for Review of Decision dated 5 May 2016.

17. Schedule 2, Part 2 of Clause 4 of the Social Security (Administration) Act 1999 (Cth) (the “Admin Act”) contains an exception that provides that a person shall become qualified for DSP if the person is not, on the day of the claim, qualified for that period but can qualify within thirteen weeks of the day on which the claim is made. It is then that the person becomes qualified.

18. In essence, for this particular application the time for which the Applicant qualifies is from the 19 May 2015 to 18 August 2015 (the “Relevant Period”).

19. The medical evidence for which the claim relates can only be taken into consideration if it concerns the Relevant Period. The fact that the evidence may have come into existence after the Relevant Period is not a problem if the evidence is concerned with the condition or health of the Applicant during that time.[15]

    [15] see Fanning v Secretary, Department of Social Services (2014) AAT 447.

    MEDICAL CONDITIONS AND MEDICAL EVIDENCE

20. Ms Brittain has a number of medical conditions which must be dealt with separately.

    Shoulder Condition

21. The first concern is what is best described as a shoulder condition. The uncontested evidence on this matter is obtained from a number of doctors. Dr Peter Dunn, a radiologist, identified a small partial thickness defect towards the anterior margin of the supraspinatus with no significant impairment to the subdeltoid bursa and a smaller fusion surrounding the bicep tendon on 19 April 2012.[16] Dr Sanjay Dhupelia, a radiologist, reports that the Applicant was treated with an ultrasound guided left subacromial subdeltoid bursal injection on 12 October 2012.[17]

    [16] Exhibit 1, T4, page 72, Radiology Reports.

    [17] Exhibit 1, T4, page 73, Radiology Reports.

22. In a medical report of 22 April 2014, Dr Stabler, an orthopaedic surgeon, diagnosed the Applicant with bilateral partial thickness tears to the rotator cuff and minor calcification of the right shoulder.[18] A number of reports were also available from the General Practitioner who treats the Applicant, Dr Karen Love. She has reported right shoulder bursitis with impingement and recommended physiotherapy. In additional medical reports dated 6 October 2016 and 14 November 2016 she identified that no further investigations or treatments were planned regarding the Applicant’s left shoulder.[19]

    [18] Exhibit 1, T5, pages 80-81, Report of Dr Stabler, Orthopaedic Surgeon.

    [19] Exhibit 1, T18, pages 184-193, Email from the Applicant to AAT and Attachments.

23. In the circumstances the Secretary accepted that the Applicant’s left and right shoulder conditions were fully diagnosed at the date of the lodgement of her claim. However the upper limb function has been assessed under the Impairment Tables as a moderate impairment in respect of the activities using hand and arms. This is contained in the JCA report dated 3 August 2015 where the Applicant was recorded as stating that she could pick up a two litre carton of milk, drag light bulky items rather than carrying them.[20] She also had difficulty using a keyboard for long periods and has difficulty unscrewing new lids. She is not impaired holding a pen or pencil and can do up buttons and shoelaces.

    [20] Exhibit 1, T9, page 138, Job Capacity Assessment Report.

24. There was some contention at the hearing of this matter as to whether she could do up shoelaces but my view is that she could probably do a shoelace but had difficulty with her own because of obesity problems. In her evidence none of the above matters were really contested or argued with.

25. The outcome of this is that the maximum number of points that could be assigned would be 5 under the Impairment Table 2 with, at best, the condition described as mild.

    Back Condition

26. Dr Manesh Ratanjeee, a radiologist, reported that an x-ray of the lumbosacral spine and coccyx performed on 23 April 2013 showed spondylolisthesis and malalignment in the proximal coccyx, likely as a consequence of a recent fall.[21]

    [21] Exhibit 1, T4, page 74, Radiology Reports.

27. A computer tomography scan performed on 5 May 2016 identified normal alignment of the lumbar spine and a right paracantral disc protrusion which indents the thecal sac at L1/2 that causes a neutral compression.[22]

    [22] Exhibit 1, T4, page 75, Radiology Reports.

28. In a medical reports of 15 May 2015 and 1 September 2015, Dr Love notes that the Applicant’s lumbosacral bulk pain and “malalignment proximal coccyx” with an onset dated 23 April 2015.[23] No specialist consultation has taken place and the Applicant’s current treatment includes analgesics, heat application and chiropractic therapy.

    [23] See Exhibit 1, T6, page 160 and Exhibit 1, T12, page 160.

29. The chiropractor, Dr Ben O’Neill, in a letter dated 9 November 2015 writes that the Applicant is a long term patient has chronic low back pain is “ascerbated by morbid obesity and depression”. In his opinion weight reduction, pain management and surgical intervention are the only possible ways of improvement.[24]

    [24] Exhibit 1, T18, page 189, Email from Applicant to AAT and Attachments.

30. The Applicant attended the Princess Alexandra Hospital on 10 October 2016 as an outpatient. In a letter typed 6 November 2016 Dr Dihan Aponso, consultant spine surgeon, reported that the Applicant had a very mild disc protrusion at L1/2 level and some disc degeneration at L3/4 and L4/5. Surgical intervention is not recommended to assist with her back pain. The doctor also recommended a review of pain management and referral to a persistent pain clinic.

31. Dr Love noted in a letter of 6 October 2016 that the Applicant was awaiting specialist review of her back condition.

32. In the circumstances it is clear the Applicant’s back condition is fully diagnosed, but that continuing investigations are needed, and are still underway, even at a period of twelve months after the Relevant Period. As such it can not be said that the condition is fully treated and stabilised.

33. In the circumstances, as the back condition is not fully treated and stabilised, it can not be assigned points under the Impairment Tables.

    Lower Limb Condition

34. The Applicant has a condition with respect to her right foot. Dr Ratanjee reports that an x-ray shows that when the right foot was examined on 13 May 2014 mild osteoarthritic changes and subcortical lucency in the articular surface of the second metatarsal bone are noted. The Applicant has said that she is awaiting an orthopaedic review in respect of her right foot conditions but at the point of the hearing that had not occurred.[25]

    [25] Exhibit 1, T4, page 78, Radiology Reports.

35. Again, in the circumstances of this particular condition, it cannot be said that the condition has been fully treated and stabilised during the relevant period, therefore the condition can not be assigned a rating under the Impairment Tables.

    Mental Health Condition

36. The medical reports identify the Applicant suffers from depression and anxiety with a 2012 starting date. Past, current and future treatment is recorded as psychology.[26]

    [26] Exhibit 1, T6, pages 97-98, DSP Medical Report of Dr Love, General Practitioner.

37. In a report dated 1 September 2015, Dr Love identifies that the diagnosis is confirmed by Dr Alistair Campbell, a clinical psychologist.[27]

    [27] Exhibit 1, T12, page 157, DSP Medical Report of Dr Love.

38. On 9 September 2015, Mr Campbell reported he had seen the Applicant on two occasions. He took a comprehensive personal history from her and conducted detailed interviews.[28] He took the view that the Applicant has major depressive disorder and social phobia and that these are unlikely to resolve until she is better adapted to her chronic pain condition. To cope with the chronic pain condition she will need multi-disciplinary intervention.[29]

    [28] Exhibit 1, T13, page 168, Report of Dr Campbell, Clinical Psychologist.

    [29] Exhibit 1, T13, page 170, Report of Dr Campbell, Clinical Psychologist.

39. Dr Love on 16 October 2015 took the view that the Applicant’s low mood and anxiety is related to factors, other than pain, including recent weight gain, poor self esteem and childhood abuse.[30]

    [30] Exhibit 1, T18, page 92, Email from Applicant to AAT and Attachments.

40. Another psychologist examined the Applicant on 20 October 2015. Mr Mike Wood writes that the Applicant engaged effectively in the therapeutic process since first presenting to him in 2012 and he diagnosed her with a severe adjustment disorder and mixed anxiety and depression.[31]

    [31] Exhibit 1, T18, page 190, Email from Applicant to AAT and Attachments.

41. In the circumstances it is clear that the mental conditions are fully diagnosed by appropriately qualified medical practitioners, pursuant to Table 5, however the mental health conditions were not optimally managed on the date of the claim or within 13 weeks and can not attract an Impairment Rating. For example, there is no evidence before the Tribunal that the Applicant has attended a pain clinic or undertaken any pain management reviews. In essence her treatment is ongoing.

    Morbid Obesity

42. Dr Love records on 1 September 2015 that the Applicant suffers morbid obesity and she had been referred to Dr Nicholson. The condition is long standing and although the evidence before me was that she had previously beaten the condition it appears she has slipped back into obesity since 2012 and regained weight ever since. She had lap band surgery in 2008 and Dr Love, in reports dated 6 October 2016 and 14 November 2016, considered that future treatment may be necessary and should be contemplated..

43. The morbid obesity is interrelated to the ongoing pain and depressive disorder and social phobia that the Applicant suffers. The evidence before me, as given by the Applicant, suggests that the weight gain was continuing and there was very little that could be done about it. However, it is apparent that the co-morbid nature of the conditions will persist until the Applicant engages with the treatment that has been recommended; as such it is not possible to assign the obesity condition a rating under the Impairment Tables.

    OVERALL IMPAIRMENT RATING

44. In the circumstances the only impairment rating the Applicant would attract is 5 points for her shoulder condition. As such it is not necessary to consider whether she has an inability to work.

    DECISION

45. This decision is based on the medical evidence made available to me at the time of the hearing and in relation to the Relevant Period. It may be that at some time in the future the Applicant will be able to qualify the DSP, but it is certainly not possible to grant it to her within the period that I am restricted to for the purposes of this application.

46. For the reasons given, the Tribunal affirms the decision under review.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan

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Associate

Dated: 28 February 2017

Date of hearing:	16 December 2016
Applicant:	By telephone
Advocate for the Respondent:	Mr Rick McQuinlan
Solicitors for the Respondent:	Department of Human Services