Byfield and Secretary, Department of Social Services (Social services second review)
[2024] AATA 49
•22 January 2024
Byfield and Secretary, Department of Social Services (Social services second review) [2024] AATA 49 (22 January 2024)
Division:GENERAL DIVISION
File Number(s): 2023/2639
Re:Kate Byfield
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member K Millar
Date:22 January 2024
Place:Adelaide
The decision under review is affirmed
..............................[sgnd]...................................
Senior Member K Millar
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for Disability Support Pension rejected – whether applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether applicant’s conditions attracted an impairment rating of at least 20 points – decision under review is affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 112
Prahauser v Administrative Appeals Tribunal [2020] FCA 1658
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member K Millar
22 January 2024
BACKGROUND
Miss Byfield suffers from a condition thromboangiitis obliterans (“Buerger’s Disease”), osteoarthritis and osteoporosis. Buerger’s Disease is a vascular disorder that has affected Miss Byfield’s hands. She initially had necrotic lesions on the tips of her fingers, and this condition has led to the auto-amputation of some of her fingertips and the loss of sensation in the middle finger of her left hand.
Miss Byfield claimed Disability Support pension (“DSP”) on 19 April 2022. Her claim was refused by a delegate of the Secretary, and on internal review an authorised review officer affirmed this decision. On 20 March 2023, the Social Services and Child Support Division of the Tribunal (AAT1) also affirmed the decision.
Miss Byfield has applied for a further review and provided a medical certificate dated 6 June 2022 from Dr Huffam, a report dated 18 April 2023 from Consultant Rheumatologist Dr Sachin Khetan, and a report dated 7 July 2023 from occupational therapist Ms Samantha Crick.
QUALIFICATION FOR DISABILITY SUPPORT PENSION
The criteria for a disability support pension are specified in s 94(1) of the Social Security Act 1991 (“the Act”) and include that the person has a physical, intellectual or psychiatric impairment, the impairment or impairments must be of 20 points or more under the Impairment Tables and the person must have a continuing inability to work.
The time at which Miss Byfield must meet these requirements starts on the date she claimed Disability Support Pension. She may qualify for a disability support pension if she becomes qualified in the 13 weeks after her claim.[1] Miss Byfield claimed DSP on 19 April 2022, and this period ends on 19 July 2022 (“the qualification period”).
[1] Social Security (Administration) Act 1999 (Cth) ss 41, 42, sch 2 cl 4; Gallacher v Secretary, Department of Social Services [2015] FCA 1123; Prahauser v Administrative Appeals Tribunal [2020] FCA 1658 at [23].
Miss Byfield has since been granted DSP, and said she had not realised that the consideration of this claim was limited to the qualification period.
Does Miss Byfield have a physical, intellectual or psychiatric impairment?
In the qualification period, Miss Byfield has a physical impairment of her fingers with a provisional diagnosis of Buerger’s Disease, and a diagnosis of osteopenia and osteoarthritis. She meets s 94(1)(a) of the Act.
Does Miss Byfield have an impairment rating of 20 points or more on the impairment rating tables?
The Impairment Tables are contained in the Social Security (Tables for the Assessment of work-related impairment for Disability Support pension) Determination 2011.
These tables set out rules for when an impairment rating can be assigned and provide a rating system. To be given a rating under the Impairment Tables, the condition causing the impairment must be permanent, and the impairment must be more likely than not, in light of available evidence, to persist for more than two years.[2]
[2] Social Security (Tables for the Assessment of work-related impairment for Disability Support pension) Determination 2011 (Cth) cl 6(3).
To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner and be fully treated, fully stabilised and more likely than not to persist for two years.[3]
[3] Ibid cl 6(4).
In deciding if a condition is fully diagnosed and treated, corroborating evidence of the condition, the treatment and rehabilitation that has occurred and whether treatment is continuing or planned in the next 2 years is to be considered.[4]
[4] Ibid cl 6(5).
The Impairment Tables set out at clause 6(6) when a condition is considered fully stabilised. A condition is fully stabilised if 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.[5] Reasonable treatment is treatment that can, among other things, reliably be expected to result in a substantial improvement in functional capacity,[6] and that has a high success rate.[7]
[5] Ibid cl 6(6)(a).
[6] Ibid cl 6(7)(c).
[7] Ibid cl 6(7)(e).
Buerger’s Disease
A medical summary dated 18 April 2022 from the Royal Darwin Hospital states a preliminary diagnosis of thromboangiitis obliterans was made in March 2022. The author of the report states she is unable to provide information on Miss Byfield’s prognosis, and recommended this information is sought from Miss Byfield’s specialists following assessment of her response to treatment. While the dates of admission are not entirely clear from this report, it appears Miss Byfield was in hospital from 8 – 17 April 2022.
A referral dated 3 May 2022 states Miss Byfield has plastics and rheumatology referrals in place.
A further report on 17 May 2022 states Miss Byfield returned to hospital with acute middle finder ischemia. Surgery was reported not to be an option, and it was likely the finger will auto-amputate. This summary states Miss Byfield has been referred to outpatient rheumatology and the chronic pain clinic.
A medical certificate from Miss Byfield’s general practitioner on 6 June 2022 provides a diagnosis of thromboangiitis obliterans, radial artery occlusion, and ongoing workup for possible diagnosis of antiphospholipid syndrome. A secondary diagnosis of osteoporosis is listed. Future treatment specified in this certificate is rheumatology review and a surgical review regarding amputation.
A medical summary dated 10 June 2022 reports Miss Byfield has had a diagnosis of Buerger’s Disease and Raynaud’s phenomenon since March 2022. She presented to the emergency department to ask for help to manage her pain.
A medical certificate from Dr McShane dated 27 July 2022, who Miss Byfield said is the rheumatology intern, states the planned treatment for her condition is steroids and pain relief. Dr McShane reports the condition is likely to have an effect on Miss Byfield’s capacity for work or study for 3 – 12 months. Dr McShane reports that pain has an impact on Miss Byfield’s ability to use her hand. Dr McShane identified optimising pain management, smoking cessation, slow wean of steroids, and close clinical monitoring as required to prepare for work or study.
A further medical certificate from Dr Middleton dated 12 October 2022 lists Miss Byfield’s diagnoses of thromboangiitis obliterans and osteoarthritis. The functional impact is reported to be pain, ulceration of fingertips, necrosis and possible loss of digits. Past, current and planned treatment is smoking cessation, corticosteroids and analgesia, with an iloprost infusion being trialled in the past.
A report from consultant rheumatologist, Dr Sachin Khetan dated 18 April 2023 clarifies that Miss Byfield was admitted to hospital in March 2022 with digital ischemia and it was felt at that time the most likely diagnosis was Buerger’s Disease. At the time there were necrotic lesions on the tip of her right second, third and fifth finger and her left second, third, and fourth finger. Dr Khetan reports Miss Byfield has had an infusion of IV iloprost and commenced on oral vasodilators. The ulcers healed, but her condition has led to the autoamputation of fingers on both sides. Dr Khetan reports that as her condition causes impaired blood supply to her fingers, this can lead to significant disability and pain and affects the dexterity of her hands.
A medical certificate from Dr Khetan dated 24 April 2023 states the functional impact of her condition is auto-amputating of fingertips, ongoing hand pain, and that Miss Byfield struggles with ADLs (activities of daily living).
Treatment with iloprost is for “prevention of ischemic tissue injury and relief of pain as part of treatment for severe Raynaud’s syndrome and treatment of severe peripheral arterial occlusive disease.” From this information, this treatment is to prevent further damage to Miss Byfield’s fingers and relieve pain. Nifedipine is relaxes blood vessels. The opinion of the medical adviser at Centrelink’s health professional advisory unit (HPAU) is that in the qualification period Miss Byfield was “still undertaking medical therapy that could improve her condition”.
Miss Byfield has received some occupational therapy. The occupational therapy report of 7 July 2023 states Miss Byfield suffers significant pain which impacts on almost all her daily tasks. By the time of the report, the occupational therapist had provided exercises and education to assist with the use of her hands, bilateral thumb and wrist braces and foam for cutlery to assist with her poor fine motor skills. Miss Byfield said these have not assisted her function, but prevent further injury to her fingertips, for example when plays with her cat, and support her wrists.
No dates of occupational therapy assessment or treatment have been provided. Miss Byfield was unable to provide more than generalities about when she had seen an occupational therapist and reported both that she had a long waiting period to see the occupational therapist, and that she has seen an occupational therapist while she was in hospital.
Miss Byfield was unable to provide further details about medication she has been prescribed, including the reported planned treatment of steroids specified in Dr McShane’s medical certificate.
While Miss Byfield has suffered ongoing functional impairment due Buerger’s Disease, the necrotic lesions have resolved, leaving her with problems with her fingertips and the middle finger of her left hand. A medical practitioner at the HPAU states the medical therapy she was receiving in the qualification period could improve her medical condition. I do not have information about when the treatment with iloprost and Nifedipine concluded, the effect of this treatment, and whether this was before or after the qualification period.
While the damage to Miss Byfield’s fingertips is not reversible and is not treatable, the opinion of a doctor from the HPAU is that the treatment she was receiving in the qualification period could lead to improvement in her condition. That it did not do so has been the subject of another application.
As the treatment Miss Byfield was receiving in the qualification period could lead to improvement, her condition of Buerger’s Disease was not fully treated and stabilised in that period and the functional impairment arising from this condition cannot be assigned impairment points under the Impairment Tables.
This is not to say Miss Byfield does not suffer considerable functional impairment from this condition, only that it was not fully treated and stabilised in the qualification period. The significant functional effect of this condition is shown by a later grant of DSP.
Osteoporosis and Osteoarthritis
Miss Byfield suffers from osteoporosis and said she broke her finger turning over fabric working at Spotlight. She said she has broken her wrist picking up a bag of groceries and has had several fractures in her spine. She said it hurts to sit, stand, or walk. Miss Byfield said this condition has an effect on her elbows, wrists, hands, neck and back and she cannot stand on her feet for too long. Miss Byfield was unable to answer further questions about her pain. She said she had seen a pain specialist at the hospital.
A report from the Royal Darwin Hospital Endocrine Clinic dated 15 February 2021 reports Miss Byfield having pain over her small and large joints with no specific distribution and no specific time of day. Her previous fractures are described as traumatic in nature, and it is inferred that this is less indicative of osteoarthritis. Miss Byfield had ceased taking calcium as it made her reflux worse. It is reported she has a fracture risk of 0.7% and a risk of hip fractures of 0.1%.
X-rays taken 9 March 2022 report thoracic spine degenerative changes. Mild glenohumeral and osteoarthritic changes are seen in her shoulders.
The emergency department of the Royal Darwin Hospital records on 13 March 2022 that Miss Byfield has a known diagnosis of osteoporosis and osteoarthritis.
Emergency department reports from 11 and 13 March 2022 state Miss Byfield presented with worsening polyarthropathy of her hands and feet in the context of known osteoporosis and osteoarthritis. This is the same presentation that led to a diagnosis of Buerger’s Disease and the pain caused by osteoarthritis cannot be distinguished from the pain caused by Buerger’s Disease.
Osteoporosis is listed as a condition in the medical certificate of 6 June 2022 with no details of treatment or of the functional effect. The medical certificate dated 27 July 2022 also does not list any past, current or planned treatment for this condition or the functional effects of a condition listed as osteoarthritis.
The HPAU opinion does not address Miss Byfield’s condition of osteoarthritis or osteopenia/ osteoporosis.
Miss Byfield has a diagnosis of osteoarthritis and osteoporosis, and there is a report from an x-ray of mild changes to her shoulders and of mild degenerative changes in her back. Miss Byfield was unable to provide further information on the functional effect of the pain that resulted from this condition in the qualification period, and I am not satisfied it attracts an impairment rating on the Impairment Tables.
CONCLUSION
Miss Byfield’s medical impairments do not have an impairment rating of 20 points or more on the Impairment Tables. As a result, she did not meet s 94(21)(b) of the Act and did not qualify for DSP.
DECISION
The decision under review is affirmed.
………………[sgnd]…….…………
Associate
Dated: 22 January 2024
Date of hearing: 15 January 2023
Applicant: Self-Represented Advocate for the Respondent: Ms Shreya Kalia
Services Australia
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