Brown and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 808
•15 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011[AATA 808
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1337
GENERAL ADMINISTRATIVE DIVISION ) Re SHARON BROWN Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr A Frazer, Member Date15 November 2011
PlacePerth
Decision The Tribunal affirms the decision under review. …(sgd) Dr A Frazer….
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – qualification requirements– applicant has impairments – applicant’s impairment less than 20 points under Impairment Tables – applicant does not have a continuing inability to work – applicant not qualified for disability support pension – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), s 94 and Sch 1B
REASONS FOR DECISION
15 November 2011 Dr A Frazer, Member Introduction
1. Ms Sharon Brown, (“the applicant”), who is 46 years of age, lodged a claim for the disability support pension (“DSP”) in respect of her anxiety and depression, back pain and vein problems in her legs on 20 September 2010.
2. On 20 October 2010 a Centrelink officer rejected her claim on the basis that although the applicant suffered from permanent impairments her impairments did not rate at least 20 points on the Impairment Tables.
3. On 17 January 2011 a Centrelink authorised review officer (“ARO”) affirmed the decision to reject the claim for DSP.
4. On 29 March 2011 the Social Security Appeals Tribunal (“SSAT”) affirmed the ARO’s decision.
5. On 11 April 2011 the applicant made an application to this Tribunal for review of the SSAT’s decision.
6. The applicant is currently in receipt of Widows Allowance.
The Relevant Legislation
7. The conditions which must be satisfied before a person is qualified for DSP are set out in paras (a) – (f) of s 94(1) of the Act. It is common ground that the applicant satisfies the conditions set out in paras (d) – (f) of s 94(1). Section 94 of the Act otherwise relevantly provides:
“ 94(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;
…
94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
…
94(5) In this section:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre‑vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work‑related training (including on‑the‑job training).
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
…”
8. The “Impairment Tables” referred to in para (b) of s 94(1) are set are set out in Schedule 1B to the Act and are relevantly referred to in paragraphs 13 - 14 below.
The Evidence
9.The evidence before the Tribunal comprised:
·the “T Documents” (T1-T15), pp 1- 224)and the ST 1 and ST2 documents lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”);
·A1 – Documentation on Venous Duplex scans on left lower limb dated 20 December 2008 and 5 April 2000
·A2 – Patient Health Summary, dated 14 June 2011 from Dr Will Thornton, General Practitioner
·A3 – Xray lumbar spine dated 2 June 2011
·A4 – Xray lumbar spine dated 28 October 2010
·A5 – Xray cervical spine 8 September 2011
·A6 – Post-Injection Pain Assessment report following bilateral facet joint injections at L4/5 dated 8 July 2011
·R1 – Employment Pathway Plan signed by the applicant on or around 9 September 2011, as agreed by the applicant during the Hearing
·Oral evidence of the applicant
The applicant’s evidence
·The applicant told the Tribunal that she agreed with the information contained in the SSAT Decision apart from the comment around alcohol use. The applicant said this is wrong and that she does not consume alcohol.
·The applicant said her back pain is the main problem and this stops her working. She has recently had bilateral facet joint injections but this only made a difference for 2 days. The applicant said her discs “are crushing”. The applicant said pain medications are not going to help however she may take some panadol. She also uses some massage and heat packs. The applicant says she will also wear a back brace when she knows she has to do something physically exerting. The applicant said her GP has suggested she see a Pain Medicine specialist however she is not interested as this will not help the problem.
·The applicant said she has also suffered from anxiety and depression however this is under control for around 90% of the time. The applicant has suffered some recent family tragedies however is still able to get up and do what she has to do. She is still able to run her household. The applicant takes Kalma and Lovan to help her with sleeping.
·The applicant said she suffers form left sided varicose veins and has had them stripped in the past. This can cause pain particularly with prolonged standing.
·The applicant said she has a drivers license however has recently given her car to her daughter. The applicant will use the bus or train for transport.
·The applicant said she has recently worked at Growzone, a child care centre, looking after a young girl with special needs. The applicant said she was very busy and frequently had to help out in the babies or toddlers room and this was too demanding. This work lasted from around March to July 2011. Prior to that the applicant said she worked at Froggies Child Care however this Centre closed before Xmas 2010.
·The applicant said she did not work from when Froggies Child Care liquidated until she commenced at GrowZone. The applicant said she sent out many letters though looking for work.
·The applicant said she wants to work and is confident that when she obtains her certificate 3 she will be able to work caring for special needs children for around 4 hours a day. The applicant said she now has an employment pathway plan and is enrolled in the Certificate 3 training in ChildCare which takes around 30 weeks a fortnight.
The Relevant Medical Evidence
10. In summary, the bilateral duplex scanning reports of the lower limb veins by Dr Teasdale demonstrate patent deep veins and some minor varicosities of the superficial veins.
11. In summary, the lumbar spine Xrays demonstrate some minor degenerative changes at the disc spaces and some degenerative changes bilaterally in the facet joints.
12. The Patient Health Summary by Dr Thornton, GP, dated 14 June 2011 confirms the applicant suffers from back pain, treated by facet joint injections and Panadol. The applicant’s medications include Kalma and Lovan. The applicant “is managing half days at work currently.”
13. The Medical Report to CentreLink by Dr Thornton received on 20 September 2010 states the applicant suffers from Depression with anxiety since 2005 treated by Lovan and Karma,
The Impairment Tables
14. Schedule 1B to the Act is headed: “Tables for the assessment of work-related impairment for disability support pension”. The tables themselves are preceded by an “Introduction“ in which it is relevantly stated:
“1. These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. …
2. These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. …
…
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. …
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
·treatment that is feasible and accessible ie, available locally at a reasonable cost;
·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
·evaluate and document the probable outcome of treatment and the main risks and or (sic) side effects of the treatment; and
·indicate why this treatment is reasonable; and
·note the reasons why the person has chosen not to have treatment.
…
15.TABLE 4. FUNCTION OF THE LOWER LIMBS
Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.
Rating Criteria
NILWalks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
TENDemonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250‑500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.
TWENTYDemonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50‑250m or less at a time. Can walk further after resting or
Unable to walk or stand but independently mobile using a self‑propelled wheelchair.
THIRTYPain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and:
requires quad stick, crutches or similar walking aid, or
is unable to transfer without assistance.
FORTYUnable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.
16.Table 6, which is used to assess psychiatric impairment, is as follows:
“It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. … Table 6 is used for permanent psychiatric disorders only. If there is insufficient clinical information available, a current or recent specialist report should be obtained.
Rating Criteria
NILMild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends.) Medical therapy or some supportive treatment from treating doctor may be required.
TENModerate and regular symptoms and generally functioning with some difficulty (eg noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work (eg short periods of absence from work).
TWENTYPsychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.
THIRTYSerious psychiatric illness with major impairments in several areas, such as work, interpersonal relations, judgement, thinking, or mood (eg depressed person avoids friends, neglects family, unable to do housework), OR some impairment in reality testing or communication (eg speech is at times obscure, illogical or irrelevant).
FORTYMajor chronic psychiatric illness which results in an inability to function in almost all areas, OR behaviour is considerably influenced by either delusions or hallucinations, OR serious impairment in communication (eg sometimes incoherent or unresponsive) or judgement (eg acts grossly inappropriately).”
Analysis
Impairments
17. It is common ground that, at all material times, the applicant has back pain, documented issues with anxiety and depression and problems with varicose veins which are permanent impairments, within the meaning of para (a) of s 94(1) of the Act.
18. The first matter for the Tribunal’s determination is whether the applicant, when she applied for the DSP and over the next 13 weeks, had a total impairment, by reason of the abovementioned conditions, of at least 20 points under the Impairment Tables, for the purposes of para (b) of s 94(1) of the Act.
Back Pain
19. It is accepted that the applicant suffers form chronic low back pain which is likely degenerative in origin and that the applicant has attempted many treatments over the years. These have included using a back brace, panadol, heat packs and more recently facet joint injections in July 2011. On balance, however, the Tribunal considers that this condition is not fully stabilised or treated as the applicant is still receiving ongoing varying forms of management of the back pain by her GP. Therefore, the Tribunal considers the low back pain is not a permanent impairment for the purposes of the Act and does not attract a rating under the Impairment Tables.
Anxiety and Depression
20. The Tribunal accepts the applicant has suffered from long term anxiety and depression and accepts the applicant is on a stable treatment regime and that this is a permanent impairment for the purposes of the Act. The Tribunal accepts the applicant’s evidence that she is overall functioning well and able to work and study. The Tribunal considers that this condition attracts an impairment rating of Nil under Table 6.
Varicose Veins
21. The Tribunal accepts the applicant has a long history of varicose veins in the left lower limb and has previous vein stripping and that this is a permanent condition for the purposes of the Act.
22. On balance, the Tribunal considers that this impairment should be assessed under Table 4 of the Impairment Tables, Function of the Lower Limbs. Whilst this condition may limit the applicant’s capacity for prolonged standing the Tribunal does not consider this condition interferes to a measurable extent in the applicant’s function. The Tribunal considers the appropriate rating for this Impairment is Nil under Table 4.
23. The applicant therefore does not satisfy para (b) of s 94(1) of the Act.
24. As the applicant does not satisfy para(b) of the s 94(1) of the Act it is unnecessary to consider whether the applicant satisfies para (c) of s 94(1) of the Act.
25. However, for completeness, the Tribunal notes that the applicant continues to work intermittently in Child Care Centres and remains committed to work and also undergo training and education to complete the Certificate 3 in Child Care. The applicant has recently committed around June 2011 to an Employment Pathway Plan to undertake 15 hours of study a fortnight and to continue working for 8 hours a fortnight.
26. The applicant therefore does not satisfy para (b) of s 94 (1) of the Act at the time of her claim and therefore was not qualified for DSP.
Decision
27.For the above reasons the Tribunal affirms the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Dr A Frazer, Member
Signed:…(sgd) T Freeman……...
AssociateDate of Hearing 11 August 2011
Date of Decision 15 November 2011
Representative of the Applicant Self-representedRepresentative for the Respondent Ms M Conlon
Centrelink
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