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

Cipolla and Secretary, Department of Social Services (Social services second review) [2017] AATA 1362 (23 August 2017)
Division:GENERAL DIVISION
File Number: 2016/5662
Re:Cinsia Cipolla
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms N Isenberg, Senior Member
Date:23 August 2017
Place:Sydney

The decision to cancel payment of the disability support pension to Ms Cipolla is affirmed.
..................................[sgd]....................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant has physical, intellectual or psychiatric impairments – whether the impairment(s) amount to 20 points or more – continuing inability to work – Table 2 Upper Limb Function – Table 5 Mental Health Function – decision affirmed.
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Freeman v Secretary, Department of Social Security [1988] FCA 458
Shi v Migration Agents Registration Authority [2008] HCA 31
SECONDARY MATERIALS
Guide to Social Security Law
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Ms N Isenberg, Senior Member
23 August 2017
BACKGROUND

The Applicant, Cinsia Cipolla, who is presently aged 56, has been paid Disability Support Pension (‘DSP’) since 7 September 2001. On 27 June 2016, the Department decided to cancel the Applicant’s DSP, but agreed to continue paying it for the time being, pending the outcome of the reviews which the Applicant sought. The decision was affirmed on internal review on 28 July 2016 and by the Social Services and Child Support Division of this Tribunal on 7 October 2016 (AAT1).
LEGISLATION
The relevant legislation is contained in:
·the Social Security Act 1991 (Cth) (‘the Act’);
·the Social Security (Administration) Act 1999 (‘the Administration Act’); and
·the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘Impairment Tables’).
Government policy set out in the Guide to Social Security Law is also relevant, and should be applied in the absence of cogent reasons to not follow such policy (Drake and Minister for immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645).
ISSUES
In determining whether the Applicant was entitled, at the date of cancellation, to the DSP, I must consider whether, at that date, she satisfied the criteria for DSP in section 94(1) of the Act. That entails consideration of:
(a)whether, as at 27 June 2016, the Applicant had a physical, intellectual or psychiatric impairment(s);
(b)whether the Applicant’s impairment(s) is of 20 points or more under the Impairment Tables; and
(c)whether the Applicant had a continuing inability to work.
Relevant Date
The question to be determined is whether the Applicant was qualified for DSP on the day on which the payment was cancelled, in this case, 27 June 2016, and, as there is a temporal requirement, at no other time (see discussion in Shi v Migration Agents Registration Authority [2008] HCA 31 at [144] to [145]). It is irrelevant that a person may subsequently (after cancellation) again fulfil the requirements for the grant (Freeman v Secretary, Department of Social Security [1988] FCA 458).
The Impairment Tables
The Impairment Tables were made under section 26(1) of the Act.
Section 6 of the Impairment Tables sets out rules for assessing the level of functional impairment of conditions and assigning impairment ratings. Subsection 6(1) states that a person’s impairment must be assessed taking into account the person’s abilities and not what they choose to do or not to do or what others do for the person. Section 6(3) states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is:
(a)permanent (in accordance with section 6(4) of the Impairment Tables); and
(b)the impairment that results from that condition is, in light of the available evidence, more likely than not to persist for more than two years.
Therefore, if the Applicant’s condition causing impairment is not “permanent”, the impairment resulting from this condition cannot be assigned an impairment rating.
Importantly in this matter, section 6(4) provides the meaning of “permanent” for the purposes of section 6(3). A condition is permanent if it:
(a)has been fully diagnosed by an appropriately qualified medical practitioner;
(b)has been fully treated;
(c)has been fully stabilised; and
(d)is more likely than not, in light of available evidence, to persist for more than two years.
Under section 6(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 sections 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
CONSIDERATION
There was no dispute that the Applicant had impairments at the relevant date for the purpose of section 94(1)(a) of the Act. Each of the Applicant’s conditions was considered against the relevant criteria.
Left upper limb impairment following Breast Cancer
There was no dispute that the Applicant’s left upper limb impairment following breast cancer was fully diagnosed, treated and stabilised at the relevant date.
The Applicant’s evidence was that she was diagnosed with breast cancer in 2000 and was immediately operated upon. She said she was diagnosed with ‘greater than stage 2’ cancer and she required the additional removal of lymph glands and her left underarm sweat gland. She said she was told the cancer was ‘moving to [her] lungs’. She went to Italy where she needed to finalise her divorce, and, while there, underwent chemotherapy for eight months and then, when she declined to continue with chemotherapy, radiotherapy for a month. She gave evidence that doctors said she had ‘cancer on the liver’ but none was found on testing. She said she was told to do exercises for her left arm but did not do so because she was depressed. She said that after five years she was regarded as cured of the cancer, but she is left with significant residual limitation with respect to her left arm. The chemotherapy has affected her liver, she said, and this has impacted on her ability to digest foods high in iron.
She said that following the surgery, her left arm is ‘dead’ and she just places it in her lap. Her mother does ‘everything’ for her. She can dress herself but has zips on everything because she is unable to manage buttons. She cannot tie shoe laces. She cannot lift her arm above her head to pull on a jumper. She is unable to lift a shopping bag in her left hand because to do so would cause her arm to swell and become painful. She said, though, she could lift a 2 litre carton of milk and place it in a shopping trolley, but could not carry it in her left hand. She said she is unable to iron, pick up laundry or wash up. Recently, she fell over, and was unable to manoeuvre herself so as to get up.
On 10 March 2016, Dr Pak, the Applicant’s treating doctor, reported that the Applicant had difficulty using her left arm including picking up, moving and manipulating large weighty and large volume objects. On 20 June 2016, Dr Pak reported that the Applicant did not have limited movement in her left hand; did not have severe difficulty handling, moving or carrying most objects; did not have difficulty using a computer keyboard; and did not have severe difficulty using a pen or pencil; and did not have severe difficulty turning the pages of a book without assistance. When asked in cross-examination about Dr Pak’s assessment, the Applicant said that he would not know about her limitations and she only sees him to obtain prescriptions.
On 24 June 2016, she attended a Job Capacity Assessment (‘JCA’). She reportedly told the assessor that she was independent in self-care but could experience difficulty doing up buttons. She reported being able to lift 2 litres of milk, albeit with her right hand. She could use her right hand for writing (she is right–handed).
The relevant portion of the Table provides:

Points

Descriptors

0

There is no functional impact on activities using hands or arms.

(1)       The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

5

There is a mild functional impact on activities using hands or arms.

(1)       The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following (Tribunal’s emphasis):

(a)      picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b)       handling very small objects (e.g. coins);

(c)       doing up buttons;

(d)       reaching up or out to pick up objects.

Dr Pak reported that the Applicant has difficulty using her left arm to pick up large weighty objects and I accept this indicates that the Applicant would satisfy the descriptor of the 5 point rating as the Applicant had some difficulty picking up heavier objects. His account was to the effect that the Applicant can handle very small objects; do up buttons; and reach up or out to pick up objects. This was in contrast to the Applicant’s evidence and her report to the JCA. I note that from the Introduction for Table 2 that self-report of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment. The Applicant said Dr Pak had been her GP since shortly after her return to Australia in 2010. I do not accept that he was unable to properly assess the Applicant’s capabilities, as the Applicant claimed.
It therefore cannot be said that there is corroborating evidence to suggest that the Applicant satisfied most of the descriptors contained in the 5 point rating at the relevant date.
Accordingly, the Applicant is assigned nil points under Table 2 for her left upper limb impairment.
Mental Health Condition
The Applicant gave evidence that, while she was in Italy having treatment for her breast cancer, she sought assistance from a psychiatric clinic, first in 2001. At the clinic she saw Dr Paolotti. He prescribed medication, and both the consultations and the medication were free.
Dr Paolotti provided medical reports which were translated. Dr Paolotti wrote, on 16 July 2004, that the Applicant was a patient of the clinic and that she suffered from recurring depression, anxiety and phobias with “serious organic impacts”. On 1 December 2008, he wrote that she had been a patient of the clinic since May 2003. A photocopy of a card attached to the latter report suggests that there was another appointment on 1 June 2010. The Applicant said, in the 10 years she was in Italy, she saw Dr Paolotti, at first every 2 weeks and then every 3 weeks.
She said that, when she was leaving Italy (in 2010), she asked Dr Paolotti if her aunt could collect medication for her, and he agreed. Her aunt arranged for the Applicant’s cousin, an air hostess, to bring the medication into Australia.
When she returned to Australia, the Applicant said, she did not seek psychiatric care. Dr Pak recommended she come under the care of a psychiatrist, but she said she could not afford it.
When she again went to Italy, in 2014, she attended Dr Paolotti and he increased her dosage of Effexor. He agreed the arrangement could continue, but he wanted to talk to her monthly. When the clinic closed down in 2015, she then no longer had access to the free medication.
On 10 March 2016, Dr Pak reported that anxiety and depression has been noted in the Applicant. In about April 2016, she commenced seeing Rudolf Stork, a psychologist. She said that Mr Stork told her she needed a psychiatrist because he was unable to prescribe the medication she needed. She continued with Mr Stork, seeing him fortnightly, until June 2016 when Medicare funding ran out. Mr Stork provided a report dated 19 April 2016, that the Applicant had reported feeling stressed, anxious and depressed for the past 16 years and that her issues included anxiety, social anxiety and panic attacks.
The Applicant was referred to Dr Nicole Burston who first saw the Applicant on or about 14 July 2016. In a report of that date, Dr Burston, wrote that the Applicant had previously taken Venlafaxine (Effexor) 150mg in Italy and her depressive symptoms had greatly improved. She reported the Applicant stopped taking Venlafaxine in 2010 and that this may be a significant factor in her currently worsening depressive symptoms. Dr Burston recommended that the Applicant:
·restart Venlafaxine at 37.5mg (increasing the dose every three days up to 150mg);
·have improved sleep hygiene;
·have baseline blood test to rule out any contributing physical causes;
·attend a Black Dog support group; and
·return in two weeks for review of medication and mood.
On 11 January 2017, Dr Burston reported that the Applicant advised her that she had never ceased taking Venlafaxine in 2010, as she had previously reported. At the hearing, the Applicant explained that, until that time, she had told no one, including Dr Burston and Dr Pak, about getting the medication from Italy, as she did not want Dr Paolotti, her aunt or her cousin to ‘have problems’.
29.Table 5 of the Impairment Tables is the relevant table for assessing mental health function. The introduction to Table 5 states that:
The diagnosis of the condition 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).
30.The Applicant’s anxiety and depression was ‘noted’ by Dr Pak, who is an appropriately qualified medical practitioner. Even if I were to accept this as a diagnosis (which I am not inclined to do), there was no supporting evidence of a clinical psychologist; Mr Stork is not a clinical psychologist. Consequently, for the purpose of Table 5, I am unable to accept the diagnosis of Dr Pak and Mr Stork for the purposes of applying Table 5.
31.As to Dr Paolotti, section 23(1) of the Act defines a “medical practitioner’’ as follows:
"medical practitioner" means a person registered and licensed as a medical practitioner under a State or Territory law that provides for the registration or licensing of medical practitioners.
32.Section 2B of the Acts Interpretation Act 1901 provides as follows:
In any Act:
"Commonwealth "means the Commonwealth of Australia and, when used in a geographical sense, includes Norfolk island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory.
“State" means a State of the Commonwealth.
"Territory, Territory of the Commonwealth, Territory under the authority of the Commonwealth or Territory of Australia” means a Territory referred to in section 122 of the Constitution.
33.I accept that Dr Paolotti may be an Italian psychiatrist and that he treated the Applicant for depression, anxiety with phobias and limitations to interpersonal relationships from at least May 2003, and that he continued to supply her with medication until the psychiatric clinic closed in 2015. However, there was no evidence that Dr Paolotti is registered as a medical practitioner under an Australian State or Territory law that provides for the registration or licensing of medical practitioners. The Respondent provided a search of the Australian Health Practitioner Regulation Agency’s (AHPRA) register of practitioners which shows no registration for Dr Paolotti. Consequently, for the purpose of Table 5, I am unable to accept the diagnosis of Dr Paolotti.
I accept the Applicant’s evidence that her condition is debilitating, and this is consistent with the observations of Dr Burston. However, the Applicant’s condition had not been diagnosed, as required by Table 5, until the report of 14 July 2016, by (Australian) psychiatrist, Dr Burston, that is after the date of cancellation.
Accordingly, the Applicant is assigned nil points under Table 5 for her mental health condition.
Other conditions: high blood pressure, arthritis, back pain, and heart palpitations
36.The Applicant reported to the JCA assessor on 26 April 2016 that she had episodes of high blood pressure and heart palpitations, and that she had participated in investigations with her doctor about the heart palpitations. She also reported at the hearing that she has arthritis, and back pain. However there is no medical evidence relating to these conditions and therefore, they cannot be considered fully diagnosed, treated and stabilised. They, therefore, cannot be assessed.
Total impairment rating
37.Therefore the total impairment rating that can be made is 0 impairment points. Because the rating is less than 20 points, the Applicant does not satisfy the provisions of section 94(1)(b) of the Act.
Continuing inability to work
38.Having found that the Applicant does not satisfy section 94(1)(b) of the Act, due to the cumulative construction of section 94, the Applicant cannot qualify for DSP, and it is not necessary to consider whether the Applicant has a continuing inability to work under section 94(1)(c).
DECISION
39.The decision to cancel payment of the disability support pension to Ms Cipolla is affirmed.

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

..................................[sgd]....................................
Associate
Dated: 23 August 2017

Date of hearing: 4 August 2017

Applicant: In person

Solicitors for the Respondent: Ms E Ulrick, Department of Human Services

[2017] AATA 1362

23 August 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	4 August 2017
Applicant:	In person
Solicitors for the Respondent:	Ms E Ulrick, Department of Human Services