CHERYL HARTNETT and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 548

[2012] AATA 548

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/2746
Re	CHERYL HARTNETT
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Ms K Hogan, Member Dr J Chaney, Member
Date	15 August 2012
Place	Perth

The Tribunal affirms the decision under review.

...(sgd|) K Hogan.....................

Ms K Hogan, Member

Catchwords

Disability Support Pension – Impairment Table

Legislation

SocialSecurity Act 1991

Social Security (Administration) Act 1999

REASONS FOR DECISION

Ms K Hogan, Member
Dr J Chaney, Member

15 August 2012

HISTORY

1. The applicant has been in receipt of disability support pension intermittently since the 1980's in respect of her irritable bowel syndrome and back injury.

2. On 8 August 2010 Centrelink initiated a review of her continuing qualification for disability support pension and, on 5 January 2011 a Centrelink officer decided that she was no longer qualified for disability support pension as her impairments did not rate at least 20 points under the Impairment Table.

3. The applicant requested a review of the decision and, on 22 February 2011, a Centrelink authorised review officer reviewed and affirmed the decision.

4. On 15 April 2011 the applicant lodged an application for review of the decision with the Social Security Appeals Tribunal ("SSAT"). 

5. On 13 June 2011 the SSAT affirmed the decision under review.

6. On 7 August 2011, the applicant lodged an application for review to this Tribunal.

   ISSUE

7. The issues to be considered by the Tribunal are:

   (a)whether the applicant has any impairments;

   (b)if so, whether her impairments rate at least 20 points on the Impairment Tables; and

   (c)if so, whether she has a continuing inability to work.

   EVIDENCE

8. The Tribunal was provided with a number of documents including:

   (a)      the section 37 documents;

   (b)     written submissions from the applicant; and

   (c)      written submissions from the respondent.

9. The Tribunal heard oral submissions on behalf of the parties.

   CONSIDERATION OF ISSUES

10. The legislation relevant to this decision is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration ) Act 1999 (the Administration Act).

11. Provisions relating to whether a person is qualified for disability support pension and whether disability support pension is payable to the person are contained in Part 2.3 of the Act.

12. Subsection 94(1) of the Act states, in part, that:

    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

13. Subsection 80(1) of the Administration Act provides for the cancellation of a social security payment. It states:

    80(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person

    (a)who is not, or was not, qualified for the payment; or

    (b)to whom the payment is not, or was not, payable;

    the Secretary is to determine that the payment is to be cancelled or suspended.

14. The Tribunal is required to assess the applicant's qualification for disability support pension on 5 January 2011, the date on which the original decision was made to cancel her pension.

    ISSUE ONE: WHETHER THE APPLICANT HAS ANY IMPAIRMENTS

15. Paragraph 94(1)(a) of the Act provides that the first qualification for disability support pension is that a person has a physical, intellectual or psychiatric impairment.

16. The Tribunal reviewed a significant number of medical and related reports and letters, including but not limited to:

    ·Reports of various gastroenterological investigations dated from 8 November 1996 to 21 October 2005;

    ·Report of a CT arthrogram of the left knee, by Dr S Guy of Perth Radiological Clinic, dated 8 April 2008;

    ·Letters from Mr. B Witte, orthopaedic surgeon, 6 May 2008 to 8 April 2011;

    ·Report of MRI scan of the left knee, by Dr D Sweeney, dated 15 July 2008;

    ·Discharge summary from Royal Perth Hospital (RPH) dated 6 July 2010;

    ·Centrelink Medical Report from Dr A Ooi, GP, dated 1 September 2010;

    ·Letter Dr R Stewart, Bentley Health Service, dated 13 March 2011;

    ·Referral for physiotherapy from Mr. Witte, dated 8 April 2011;

    ·Letter Dr Ooi, dated 3 May 2011;

    ·Letter L Palmer of Richmond Fellowship, dated 13 May 2011;

    ·Job Capacity Assessment (JCA) completed by a psychologist, dated 22 October 2010.

17. At the hearing of this matter the applicant provided a report from Dr Tony Ryan, Consultant Physician, dated 26 June 2012. 

18. The respondent did not dispute that the applicant has irritable bowel syndrome, a spinal injury, relapsing depression and left knee problems and therefore satisfies subsection 94(1)(a) of the Act.

19. On the basis of the medical evidence the Tribunal found that the applicant suffers from impairments due to these conditions and that she satisfies paragraph 94(1)(a) of the Act.

    ISSUE TWO: WHETHER THE APPLICANT'S IMPAIRMENTS RATE AT LEAST  20 POINTS UNDER THE IMPAIRMENT TABLES

20. Paragraph 94(1)(b) of the Act provides that the second qualification for disability support pension is that the person's impairment rates 20 points or more under the Impairment Tables.

21. Paragraph 4 of the introduction to the Impairment Tables states;

    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....

22. Paragraphs 5 and 6 of the Introduction to the Impairment Tables state:

    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.

    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 i.e., 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.

23. The Tribunal considered the applicant's evidence and the abovementioned medical reports, to determine whether her impairments were permanent and, if so, whether they rated any points under the Impairment Tables.

Irritable bowel syndrome

1. Medical reports dating from November 1996 to October 2005 of Drs Ooi and Stewart mention the irritable bowel condition in conjunction with mental health issues but there was little information regarding any medication or dietary requirements.

2. The recent report of Dr Tony Ryan ( 26 June 2012) notes that the applicant is to undergo a trial of a low fructose diet for the irritable bowel syndrome.

3. Dr Ryan provides a differential diagnosis of chronic pancreatitis due to alcohol excess for which the applicant is to undergo tests and future medical review.

4. It was evident that the applicant's irritable bowel syndrome is not adequately diagnosed, treated and stabilised, therefore it is not a permanent impairment for the purposes of the Act.

Spinal Injury

1. Whilst there are references to a lumbar back injury in the reports of Drs Ooi and Ryan there is no significant medical information regarding the applicant's back injury.

2. The Tribunal accepts that the applicant has a longstanding lower back injury.  However, in the absence of specific medical information regarding this impairment, the Tribunal was not able to determine whether it could be considered permanent or whether it attracted a rating under the Impairment Tables.

Left knee injury

1. The CT arthrogram (8 April 2011) and MRI (15 July 1988) confirm the presence of a longstanding complete rupture of the anterior cruciate ligament and a bucket handle tear of the medial meniscus in the left knee.

2. Mr. Witte (31 August 2010) noted mild joint line tenderness on both sides of the right knee and minor patella-femoral crepitus.  He did not consider that she needed any further investigation or surgery.

3. Mr. Witte reviewed the applicant on 29 March 2011 after she had fallen and re-injured her left knee.  He noted that both knees had some patella-femoral instability and ordered further X-rays

4. On 8 April 2011 Mr. Witte noted that the applicant's knees were gradually settling down and X-rays taken following her fall had not revealed any abnormalities.  He referred her for physiotherapy and rehabilitation for both patella-femoral joints and arranged to review her in a couple of months.

5. The Tribunal is satisfied that the applicant has a longstanding left knee injury, which could be considered permanent.  At the time the decision was made to cancel her disability support pension, the most up- to- date orthopaedic assessment of her left knee injury was that whilst she had mild joint line tenderness and mild patella-femoral crepitus, these conditions required no further investigation or surgical treatment.  On this basis it is likely that her impairment would attract a rating under Table 4 of the Impairment Tables, which relate to the lower limbs.  Unfortunately she suffered further injury to her knees and was referred for physiotherapy.  There is no medical evidence upon which to make an accurate assessment of the current status of her knee impairment. 

Mental health

1. In his medical report of 1 September 2010, Dr Ooi noted that the applicant experienced a relapse in the severity of her depressive symptoms related to multiple external stressors.  He stated she had taken an overdose on 17 July 2010 and required hospitalisation.  Dr Ooi noted that the applicant's symptoms included depressed mood, lethargy and difficulty concentrating, and that her previous treatment had included Lexapro, Epilim and Lovan.  He stated that he had commenced her on Cymbalta and referred her to Mission Australia for counselling. 

2. The letter from Dr Stewart of Bentley Health Service described the various stressors affecting her mental health including her relationship with her mother which had resulted in her mother asking her to move out of her home, her financial difficulties and her abuse of alcohol and cannabis. 

3. Dr Stewart found that there was no evidence of major depressive disorder or psychosis. He assessed her as suffering from an acute situational crisis, in the context of conflict with her mother against a background of chronic psychosocial stressors, and that she had limited ability to accept responsibility for her situation and tended to project it externally.  He stated that it was "clear that her vulnerable personality (mixed B/C type) and likely ongoing substance misuse is impairing her ability to individuate from her mother, resolve her financial crisis and negotiate more mature social relationships".

4. Dr Stewart recommended that she should persist with the services offered by Mission Australia and Ruah and continue with Cymbalta.  He suggested that counselling through the Better Outcomes program could be considered if more intensive psychological counselling was required, noting that psychological strategies and management of substance abuse are likely to have the most impact on her mental health.

5. The Tribunal found that although the applicant's mental health problems are longstanding, at the time the decision was made to cancel her disability support pension, her mental illness had not been adequately treated by medication or counselling and it could not be considered stabilised as set out above in the Introduction to the Impairment Tables.

6. The Tribunal has found that none of the applicant's various impairments could be considered permanent and therefore did not attract a rating under the Impairment Tables at the time her disability support pension was cancelled. Therefore the applicant does not satisfy paragraph 94(1)(b) of the Act and is not qualified for disability support pension.

   ISSUE THREE: WHETHER THE APPLICANT HAS A CONTINUING INABILITY TO WORK

7. As the application does not satisfy paragraph 94(1)(b) of the Act, the Tribunal was not required to consider her continuing ability, or otherwise, to work.

   DECISION

8. The Tribunal affirms the decision to cancel the applicant's disability support pension.

I certify that the preceding 42 (forty two) paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member and Dr J Chaney, Member.

..(sgd) T Freeman....................

Associate

Dated 15 August 2012

Date of hearing	27 June 2012
Applicant	In person
Advocate for the Respondent	Mr Dube