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

Campbell and Secretary, Department of Social Services (Social services second review) [2015] AATA 634 (27 August 2015)

Division

GENERAL DIVISION

File Number(s)

2014/1922

Re

Karen Campbell

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Dr T Nicoletti, Senior Member

Date 27 August 2015

Place Sydney
The decision under review is affirmed.

........................................................................
Dr T Nicoletti, Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairments rated 20 points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94(1)

Social Security (Administration) Act 1999 (Cth)

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

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION
Dr T Nicoletti, Senior Member
27 August 2015
BACKGROUND

Ms Campbell (the Applicant) has requested that this Tribunal review a decision of the Social Security Appeals Tribunal (SSAT) dated 6 March 2014, which affirmed a decision made by the Department of Human Services to reject her claim for disability support pension (DSP).
Ms Campbell lodged her claim for DSP on 27 September 2012 and listed her conditions as “bad headaches, foot – painful and toes go numb and tingling, hip – limping, heart – too fast”. On 4 October 2012, Dr McGeoch completed a medical report which stated that Ms Campbell had the conditions of “major depression, degenerative spine and disc disease c5/6 – back pain, ankle pain”.
On 8 October 2012, a Job Capacity Assessment (JCA) was conducted which identified medical conditions of depression and spinal disorder, but found that both conditions were not fully treated and stabilised during the claim period, and therefore no impairment rating could be given. The JCA found that Ms Campbell had a baseline work capacity of 15-22 hours per week and her working capacity within two years with intervention was 23-29 hours per week.
On 19 November 2012, a second JCA was conducted which identified conditions of depression, a spinal disorder, left ankle osteoarthritis and right trochanteric bursitis of the hip. Again, none of these conditions were found to be fully treated and stabilised during the claim period and, again, no impairment rating could be given. Ms Campbell was found to have a baseline work capacity of 8-14 hours per week and her working capacity within two years with intervention was 15-22 hours per week.
On 11 December 2012, the Department of Human Services (the Department) rejected Ms Campbell’s claim for DSP because she did not meet the relevant qualification criteria for DSP during the claim period. The decision was affirmed by an Authorised Review Officer (ARO) and, subsequently, the SSAT affirmed the ARO’s decision.
ISSUES
The Tribunal is required to decide whether Ms Campbell was qualified or became qualified to receive DSP within the period 27 September 2012 to 26 December 2012 (the claim period). Specifically, this requires the Tribunal to determine:
(a)whether Ms Campbell’s impairments were permanent within the meaning of social security law, and if so;
(b)whether her impairments attracted a rating of 20 points or more under the Impairment Tables; and
(c)whether she had a continuing inability to work for at least 15 hours per week, including the requirement to have actively participated in a Program of Support.
LEGISLATION
Section 94 of the Social Security Act 1991 (the Social Security Act) sets out the criteria for qualification for DSP. Relevantly, this section provides:
94 Qualification for disability support pension
(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;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
…
Continuing inability to work
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and
(a) in all cases—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) in all cases—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).
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person’s locally accessible labour market.
…
Severe impairment
(3B) A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
…
The Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) contains rules for applying the Impairment Tables when deciding if a person is qualified for DSP. Pursuant to subsection 5(2), the Impairment Tables are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions.
The term “impairment” is defined under s 3 of the Impairment Tables as:
impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
The application of the Tables are set out under s 6 as follows:
Assessing functional capacity
(1) The impairment of a person must 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.
Applying the Tables
(2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note: For additional information that must be taken into account in applying the Tables see section 7.
….
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Impairment has no functional impact
(8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
…
Section 8 of the Impairment Tables sets out information that is not to be taken into account in making an assessment:
Information that must not be taken into account in applying the Tables
(1) Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note: Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
(2) Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
…
In selecting the applicable Table and assessing impairments, multiple conditions causing a common impairment are provided for under subsections 10(5)-(6) of the Impairment Tables as follows:
Multiple conditions causing a common impairment
(5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
Pursuant to subsection 94(2)(aa) of the Act, where a person has not been assigned 20 points under a single impairment table, and does not have a severe impairment, the person will be required to have actively participated in a program of support. If they have not done so, they cannot be found to have a continuing inability to work.
The term “program of support” is defined in subsection 94(5) of the Act as follows:
Program of support means a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
In deciding whether a person has actively participated in a program of support, s 94(3C) provides that:
(3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
On 23 August 2011, the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (POS Determination) was introduced pursuant to subsections 94(3C) and 94(3E) of the Social Security Act.
Requirements for active participation are outlined under s 5 of the POS Determination:
5. Requirements for active participation
(1) A person has actively participated in a program of support if:
(a) the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the 36 months ending immediately before the relevant date of claim; and
…
(2) This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months.
CONSIDERATION
On 1 April 2015, a direction was issued providing Ms Campbell with the opportunity to file, by 21 April 2015, further materials relating to her medical conditions for the claim period. This was for the purpose of providing corroborating evidence that the Ms Campbell’s medical conditions were properly diagnosed and fully treated and stabilised. A telephone appointment was also arranged for Ms Campbell with a Legal Aid solicitor to discuss her matter.
The matter was listed for a non-compliance directions hearing on 30 April 2015. Ms Campbell requested an extension of time to lodge further evidence, but the Tribunal refused this request.
The Respondent accepts that the Ms Campbell suffered from the following medical conditions during the claim period, and therefore had a “physical, intellectual or psychiatric impairment”, satisfying section 94(1)(a) of the Act:
(a)Depression;
(b)Spinal disorder;
(c)Left ankle osteoarthritis; and
(d)Trochanteric bursitis of the right hip.
However, the Respondent contends that Ms Campbell did not satisfy section 94(1)(b) of the Act, because none of her medical conditions were properly diagnosed, fully treated and stabilised during the claim period, allowing:
(a)an impairment rating to be assigned; and
(b)the determination of an impairment rating of 20 points or more under the Impairment Tables.
Further, the Respondent contends that Ms Campbell did not satisfy paragraph 94(1)(c) of the Act because no evidence was submitted establishing that the Applicant had a continuing inability to work for at least 15 hours per week.
On this basis, the Respondent contends that Ms Campbell’s claim for DSP ought to be rejected, because she did not qualify for DSP during the claim period.
Were the Applicant’s medical conditions properly diagnosed and fully treated and stabilised?
Before an impairment rating can be assigned in respect of Ms Campbell’s medical conditions, the Tribunal must first be satisfied that Ms Campbell’s medical conditions were properly diagnosed and fully treated and stabilised during the claim period. In the absence of such evidence, an impairment rating cannot be assigned and section 94(1)(b) of the Act will not be satisfied.

Was the Applicant’s depression properly diagnosed, fully treated and stabilised?

The Respondent contends that Ms Campbell’s depression was not properly diagnosed, fully treated and stabilised during the claim period, and therefore an impairment rating could not be assigned.
Pursuant to the Introduction to Table 5 (mental health function), a diagnosis of a condition affecting a person's mental health function "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)".
The Respondent contends that there is no medical evidence establishing that Ms Campbell's depression was properly diagnosed by a psychiatrist or a clinical psychologist during the claim period. It refers to one report from a clinical psychologist, Mr Don Maxwell, which furnishes a diagnosis, but it is noted that the report is dated 6 June 2014, almost 18 months after the claim period.
The Respondent relies on the following evidence to contend that Ms Campbell’s depression was not fully treated and stabilised during the claim period:
(c)A medical report from Dr McGeoch dated 4 October 2012 which stated that the past, current and future/planned treatment for depression is Pristiq;
(d)The first JCA dated 8 October 2012, which stated that Ms Campbell reported that her depression was "diagnosed 2010. No history of hospital treatment, suicidal or self harming behaviours. Current symptoms of anxiety noted as stress related due to family issues, with difficulty sleeping. Noted to be taking oral anti-depressant medication Pristiq. Nil other treatment medically reported”;
(e)A mental health care plan from Dr Robert Sim dated 16 October 2012, which identified Ms Campbell's presenting problems as depressed mood and anxiety, and outlined a plan to improve her mental health; and
(f)A medical report from Dr Elizabeth Butt dated 25 October 2012, which stated that Ms Campbell commenced psychological counselling on 16 October 2012. The report also stated that Ms Campbell had approximately six months of counselling in 2009, was currently taking Pristiq and Temazepam, and that further counselling was planned.
The JCA dated 8 October 2012 states that Ms Campbell:
"has not yet undertaken counselling and other treatment options have not yet been explored, this condition does not meet criteria to be assessed as FDTS at this time. Ms Campbell reported that she is going to make an appointment to commence counselling with a psychologist”.
Two subsequent JCAs, dated 19 November 2012 and 29 January 2013 noted that there was no evidence that Campbell’s depression had been diagnosed or reviewed by a psychiatrist or clinical psychologist.
The ARO and SSAT determined, based on their review of the medical evidence, that Ms Campbell’s depression was not properly diagnosed, fully treated and stabilised during the claim period.
From my review of the medical evidence, I agree with the SSAT’s findings and conclude that there is no evidence that Ms Campbell’s depression was properly diagnosed and fully treated and stabilised during the claim period. An impairment rating in respect of her depression can therefore not be assigned.
Was the Applicant’s spinal condition properly diagnosed, fully treated and stabilised?
The Respondent contends that Ms Campbell’s spinal condition was not properly diagnosed, fully treated and stabilised during the claim period, and therefore an impairment rating cannot be assigned.
The Respondent relies on the following evidence provided during the claim period in support of this contention:
(a)A medical report from Dr McGeoch dated 4 October 2012, which diagnosed Ms Campbell as having "degenerative spine and disc disease C5/6. Back pain" and reported that the previous and planned treatment with Panamax and brufen.
(b)A medical report from Dr Elizabeth Butt dated 25 October 2012, which referred to previous treatment with anti-inflammatories and Panamax and proposed treatment with medication and physiotherapy/hydrotherapy. Notably, Dr Butt stated that the impact of the condition was expected to persist for more than 24 months and deteriorate.
(c)A medical report from Dr McGeoch dated 15 November 2012, which noted that Ms Campbell had not been referred to a specialist.
A report dated 24 April 2013 (four months after the claim period ended) from Ms Sue Forbes, a physiotherapist:
"Karen reported she was doing no exercise at that stage but was keen to start suitable activities. Treatment consisted of helping Karen develop a plan of gentle graded exercise starting with the hydrotherapy pool. I also commenced some core stability exercises that she could continue at home. Soft tissue techniques were used on her lower back and hip. Karen attended Toronto Pool independently and reported she was enjoying exercising in the pool. I encouraged her to continue to attend hydrotherapy at least twice a week” (emphasis added).

Based on my review of the medical evidence, there does not appear to have been a structured program of treatment in respect of Ms Campbell’s spinal condition, comprising pharmacotherapy, physiotherapy and hydrotherapy. I cannot conclude, therefore, that Ms Campbell’s spinal condition was fully treated and stabilised during the claim period.
Was the Applicant’s left ankle osteoarthritis properly diagnosed, fully treated and stabilised?
The Respondent contends that Ms Campbell’s left ankle osteoarthritis was not fully treated and stabilised during the claim period.
The Respondent relies on the following evidence prepared during the claim period to support this contention:
(a)A medical report from Dr McGeoch dated 4 October 2012, which stated Ms Campbell had ankle pain and that the past, current and future/planned treatment was Panamax and brufen.
(b)A medical report from Dr Wolfgang Gowin dated 19 October 2012, which stated that "the findings in the medial and lateral parts of the left ankle joint suggest mild post-traumatic degenerative arthropathy”.
The second JCA dated 19 November 2012 stated that Ms Campbell was:
"taking oral brufen for pain management. Nil other treatment was noted in new medical documentation. As only treatment reported in new and current medical documentation is oral brufen and X-Ray scan, the noted conditions do not meet criteria to be assessed as fully treated and stabilised at this time, as further orthopaedic consultation and other reasonable treatment options, including a pain management program, specialist consultation, or surgery, have not yet been explored at this time".
On 25 March 2013, three months after the claim period ended, Ms Campbell consulted a podiatrist, Mr Greg Taylor. In his report of the same date, Mr Taylor stated:
"Karen presents with left ankle pain and swelling. Swelling has been present for a long period, and medial and lateral ankle arthropathy is present as per x rays. Karen injured her ankle approximately 10 years ago. Lateral ankle pain is more pronounced on weightbearing. She has a supinated foot type. Otherwise no other significant observations are made. Current footwear choices are poor. I have provided Karen with footwear recommendations as an initial plan. These will be reviewed at her next visit, to assess whether corrective wedging or prefabricated orthoses may be of assistance".
This indicates that efforts to treat Ms Campbell’s left ankle osteoarthritis occurred after the claim period ended.
This is further supported by the treatment plan referred to in the subsequent physiotherapy report of Ms Forbes (discussed in paragraph 35 above), which was also devised in relation to Ms Campbell's left ankle but, as noted in paragraph 35 above, was developed four months after the claim period ended.
On this basis, I conclude that Ms Campbell’s left ankle osteoarthritis was not fully treated and stabilised during the claim period, such that an impairment rating cannot be assigned.
Was the right hip trochanteric bursitis fully treated and stabilised?
The Respondent contends that the right hip trochanteric bursitis was not fully treated and stabilised during the claim period.
The Respondent relies on the following evidence prepared during the claim period to support this contention:
(a)A medical report dated 1 November 2012 from Dr John Williams, radiologist, which stated that "if clinically indicated this patient may benefit from a corticosteroid injection into the trochanteric bursa".
(b)A medical report dated 13 November 2012 from Dr Sabbir Siddique, which stated that Ms Campbell had an ultrasound-guided right trochanteric bursa injection.
Both of the above reports indicate that Ms Campbell’s right hip trochanteric bursitis was not fully treated and stabilised at the time the reports were produced.
Further to the above, the treatment plan referred to in the subsequent physiotherapy report of Ms Forbes (discussed in paragraph 35 above), which was also devised in relation to Ms Campbell's right hip, was developed four months after the claim period ended.
On this basis, I conclude that Ms Campbell’s right hip trochanteric bursitis was not fully treated and stabilised during the claim period, such that an impairment rating cannot be assigned.
Total impairment rating
Given that no impairment ratings can be assigned in relation to any of the medical conditions suffered by Ms Campbell, subsection 94(1)(b) of the Act is not satisfied.
On this basis, I conclude that during the claim period, Ms Campbell did not meet the criteria that she was required to satisfy in order to qualify for DSP.
For the purposes of my decision, given that Ms Campbell did not satisfy subsection 94(1)(b) of the Act, it is not necessary for me to consider whether she had a continuing inability to work, as required under subsection 94(1)(c) of the Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Dr T Nicoletti, Senior Member
..............................[sgd]..........................................
Associate
Dated 27 August 2015

Date(s) of hearing 1 April 2015

Applicant In person

Solicitors for the Respondent Department of Human Services

[2015] AATA 634

27 August 2015

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Impairment Rating

Active Participation

Medical Conditions

Division	GENERAL DIVISION
File Number(s)	2014/1922
Re	Karen Campbell
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Dr T Nicoletti, Senior Member
Date	27 August 2015
Place	Sydney

Date(s) of hearing	1 April 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services