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

[2016] AATA 442

Cirillo and Secretary, Department of Social Services (Social services second review) [2016] AATA 442 (29 June 2016)

Division	GENERAL DIVISION
File Number	2015/0030
Re	Giuseppa Cirillo
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Regina Perton, Member
Date	29 June 2016
Place	Melbourne

The Tribunal affirms the decision under review.

[sgd]........................................................................

Regina Perton, Member

Catchwords

SOCIAL SECURITY - disability support pension – whether medical conditions diagnosed, fully treated and stabilised at time of claim or within 13 weeks of that date – points to be allocated - decision affirmed

Legislation
Social Security Act 1991 section 94
Social Security (Administration) Act 1999 section 4 of Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Regina Perton, Member

29 June 2016

1. Giuseppa Cirillo, who was then in her early sixties, lodged a claim for disability support pension (DSP) with Centrelink on 26 June 2014.  On 11 July 2014 a Centrelink officer rejected Mrs Cirillo’s claim (the original decision). Centrelink administers DSP for the Secretary, Department of Social Services (the respondent).

2. Mrs Cirillo sought a review of the original decision by a Centrelink authorised review officer (ARO).  On 2 October 2014 the ARO affirmed the original decision. 

3. Mrs Cirillo lodged an application for review of the ARO's decision with the Social Security Appeals Tribunal (SSAT) on 8 October 2014.  On 27 November 2014 the SSAT affirmed the ARO's decision to refuse DSP on the basis that Mrs Cirillo's impairments did not rate 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) on 26 June 2014 or within 13 weeks of that date (the relevant period). 

4. On 2 January 2015 Mrs Cirillo lodged an application for review of the SSAT decision with this Tribunal.

5. The issue before the Tribunal is whether Mrs Cirillo satisfied the requirements for DSP during the relevant period.  The Tribunal is not empowered to decide whether she met the requirements at a later date.

   QUALIFICATION FOR DSP DURING THE RELEVANT PERIOD

6. Section 94 of the Social Security Act 1991 (the Act) sets out the criteria for a person to qualify for DSP. 

   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) the person has a continuing inability to work

   …

7. When deciding whether a person qualifies for DSP, the decision-maker also needs to take into account the provisions of section 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act). Section 4(1) allows a person who does not qualify for DSP at the date of application to do so within 13 weeks of that date.

8. On 20 May 2014 Mrs Cirillo’s general practitioner, Dr Charitha Ranasinghe, completed a medical report indicating that Mrs Cirillo suffered from severe back pain, temporo mandibular joint pain, depression due to chronic severe disabling pain, right ear hearing loss and trigeminal neuralgia. Dr Ranasinghe indicated that Mrs Cirillo had been her patient since 2009.   

9. In her claim form, Mrs Cirillo also mentioned problems with discs in neck and described the symptoms of trigeminal neuralgia as face numbness and loss of eyesight. 

10. The Tribunal accepts that Mrs Cirillo suffered from a number of medical conditions during the relevant period and continues to do so. Her impairments included a spinal condition, depression and trigeminal neuralgia. The Tribunal accepts that Mrs Cirillo suffered from physical and mental impairments at the time she lodged her claim for DSP. She therefore meets the requirements of section 94(1)(a) of the Act.

11. The Tribunal must next decide whether Mrs Cirillo's medical conditions attract an impairment rating totalling 20 points, subject to satisfying the requirements under sections 6(3) and (4) of the Impairment Tables.  The legislation only allows for impairment points to be assigned for a particular condition if it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and fully stabilised, and is likely to persist for more than two years (section 94(2) of the Act). 

12. Section 6 of the Impairment Tables states that:

    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.

    …

    Impairment ratings

    (3)An impairment rating can only be assigned to an impairment if:

    (a)the person’s condition causing that impairment is permanent; and

    Note: For permanent see subsection 6(4).

    (b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    …

    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.

    (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

    (bthe 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.

    Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.

    Assessing functional impact of pain

    (9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:

    (a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and

    (b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

    (c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).

13. Section 8 of the Impairment Tables sets out what cannot be taken into account.

    8Information that must not be taken into account in applying the Tables

    (1)...

    (2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.

    Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.

    Mrs Cirillo’s back condition

14. The Tribunal accepts that Mrs Cirillo suffered from back pain during the relevant period.  Mrs Cirillo provided oral and written evidence about a work related injury in 2008 when she was putting a wheelchair into the boot of a car.  She was working as a carer at the time.

15. A CT scan of Mrs Cirillo’s lumbar spine was taken on 6 May 2008 and an MRI on 23 June 2008 revealed some problems with her back.

16. In a report dated 10 July 2009 addressed to the Workcover insurer, Dr Terence C Lim, consultant in rehabilitation and pain medicine, requested funding for Mrs Cirillo to be admitted to an inpatient rehabilitation centre in relation to chronic pain she was experiencing.  Dr Lim reported that a spinal orthopaedic surgeon, Mr Michael Brighton-Knight, had recorded that Mrs Cirillo had presented with 15 months of severe, unremitting back and mainly right leg pain with some left leg pain.  Dr Lim reported that Mrs Cirillo had initially been treated with analgesic medication and oral steroids.  She was referred to a surgeon in May 2009 who gave her a nerve root injection which reportedly caused her further pain.  Dr Lim stated that Mrs Cirillo had exquisitely tender muscular trigger points.

17. In her report dated 20 May 2014 prepared for Mrs Cirillo’s DSP application, Dr Ranasinghe described Mrs Cirillo as suffering from severe back pain.   Dr Ranasinghe stated that the diagnosis had been supported by an MRI in 2008.  She stated that Mrs Cirillo’s current treatment was physiotherapy, continuous analgesia and follow up with spinal surgeon.  Past treatment had been physiotherapy, analgesia, neurology review and spinal surgical review and spinal injection.  Spinal surgery had been recommended.  Dr Ranasinghe stated that Mrs Cirillo had difficulty walking due to pain and needed to sit every 15 to 30 minutes.  Long periods lying down were described as making the pain worse.   Dr Ranasinghe stated that her patient cannot bend, kneel or lift any sort of weight greater than 2 kilograms. 

18. A Job Capacity Assessment Report (JCA report) was undertaken on 8 July 2014.  The assessor noted that in relation to the option to undergo spinal surgery, Mrs Cirillo decided that the risk was too great based on her reaction to a spinal injection in 2009.  The assessor was of the view that 10 points should be awarded for the spinal disorder pursuant to Table 4 stating:

    She is able to sit in or drive a car for at least 30 minutes.  She drove her car alone to the assessment.  She reported that she experiences intermittent numbness, pin/needles in her right leg/foot. She experiences back pain but is able to turn to look in all directions, can bend forward to pick up a light object placed at knee height and does not needs (sic) assistance to get up out of a chair as observed during this assessment.  She uses a single walking stick.

19. In her response to a questionnaire (presumably sent by the SSAT) signed on 24 November 2014, Dr Ranasinghe stated that she had diagnosed severe spinal injury due to disc disease and degenerative osteoarthritis.  She stated that Mrs Cirillo’s treatment comprised analgesia, neurologist review, physiotherapy and GP regular reviews.  Dr Ranasinghe stated that there was zero possibility of her patient working or being trained for work.

20. Mrs Cirillo provided a copy of a questionnaire she completed for Dr Brighton-Knight on an unknown date.  There were several possible answers to various aspects of her condition.  Mrs Cirillo stated that pain medication seldom has an effect on her pain.  She chose the alternative in relation to personal care, I can take care of myself normally, but it increases my pain.  She responded that she can only lift very light weights.  Mrs Cirillo stated that pain prevented her from walking less than ¼ mile using walking stick with pain increasing. She stated that pain prevented her from sitting for more than ½ hour, sometimes even less than that.  She stated that in relation to standing, her response was the same as for sitting.  Mrs Cirillo indicated that even if she took medication, she slept less than two hours.

21. The respondent submitted that the Tribunal should not accept that Mrs Cirillo’s condition was fully diagnosed, treated and stabilised on the basis that there was insufficient information about the nature of the proposed surgery or the likely benefits and risks.  However, the Tribunal accepts that it is reasonable for Mrs Cirillo to choose not to have back surgery, preferring to live with the condition as it is.

22. The Tribunal accepts that Mrs Cirillo’s back condition has been fully diagnosed, treated and stabilised.  Dr Ranasinghe has stated that her patient’s condition will not improve.   The respondent contended that if the Tribunal finds that the condition has been fully diagnosed, treated and stabilised, 10 points, not 20 points as suggested by Dr Ranasinghe, should be awarded.

23. Table 4 of the Impairment Tables is the relevant table for the spinal condition. 

24. For five points under Table 4 of the Impairment Tables the criteria set out for a mild functional impact on activities involving spinal function are as follows:

    1The person has some difficulty in:

    (a)activities over head height (e.g. activities requiring the person to look upwards); or

    (b)bending to knee level and straightening up again without difficulty; or

    (c)turning their trunk or moving their head (e.g. to look to the sides or upwards)

25. For 10 points under Table 4 of the Impairment Tables the criteria set out for a moderate functional impact on activities involving spinal function are as follows:

    1The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

    (a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or

    (b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

    (c)the person is unable to bend forward to pick up a light object placed at knee height; or

    (d)the person needs assistance to get out of a chair (if not independently mobile in a wheel chair).

26. For 20 impairment points under Table 4 the criteria set out for a severe functional impact involving spinal function are as follows:

    1The person is unable to:

    (a)perform any overhead activities; or

    (b)turn their head, or bend their neck, without moving their trunk; or

    (c)bend forward to pick up a light object from a desk or table; or

    (d)remain seated for at least 10 minutes.

27. Based on the evidence before it, the Tribunal is satisfied that Mrs Cirillo should be allocated 10 points for her spinal condition. 

    Trigeminal neuralgia

28. In her report dated 20 May 2014 Dr Ranasinghe stated that Mrs Cirillo had been diagnosed with trigeminal neuralgia which had been confirmed by a specialist.  Dr David A Prentice, neurologist, provided a report to Dr Ranasinghe dated 1 April 2014 in which he stated:

    Many thanks for your referral of this very nice 62 year old woman who has been troubled with right sided ear and head pain for the last 6 years.  It coincided with the onset of deafness in her right ear and also some dental work when she had 2 molars removed.  She describes a numb dysesthatic feeling over the right side of her face and head; sometimes exceeded to the lips. She has continuous tinnitus in her right ear and experiences jabbing neuralgic type pain in her right ear   and right parietal region.  Sometimes she feels like her right face tends to droop.  She has previously been on gabapentin and Pregabalin for this without any improvement and apparently with side effects from both these agents.  A CT brain in November last year was normal.

    Pina’s only current medications are aspirin, Crestor and she sometimes uses Nurofen.  She is apparently allergic to Panadol and has also had reactions to steroid injections in the past for her lower back problems. She has a history of right L5 radiculopathy previously treated by Michael Brighton-Knight.  She has also had right sided termporomandibular joint problems and has seen Dr Jonathon Tversky regarding this.  She has also been seen by ENT surgeons in the past who could find no cause for her tinnitus and deafness.  She has also had some problems with anxiety and depression and palpitations.  She is a non-smoker and non-drinker.

    On examination today, Pina was a not unwell looking, late middle-aged woman.  ….cranial examination was normal, apart from subjective alteration in light touch sensation over the face and scalp.  Facial nerve function was normal.  There was tenderness and clicking over the right jaw joint and also some tenderness over the right greater occipital nerve.

    Pina’s pain has a very neuralgic quality to it and she describes some symptoms suggestive of facial nerve dysfunction as well as ingeminal nerve dysfunction.  I think it would be wise for her to have a MRI of her brain and cervical spine and I’ve arranged this…and I’ve put her on a small dose of Endep…in the meantime to see if this improves her symptoms.  I’ve also arranged for her to have blood tests for any underlying inflammatory or metabolic conditions and I will review her after the MRI…  

29. On 28 May 2014 Dr Prentice provided an update to Dr Ranasinghe:

    Pina’s MRI of the brain was all normal.  In the cervical spine, she did have some spondylosis with some mild central canal stenosis; causing some foraminal narrowing at C4-5 and C5-6, but there was no evidence of any upper cervical radiculopathy.  She hasn’t tolerated the endep very well; with excessive drowsiness; and so I am going to try her on tegretol instead; starting at a small doses of 50mg bd, then increasing to 100mg bd, if tolerated.  She can go up to higher doses, if necessary.  If this settles things down, I would be happy to review her in another 6 months time. 

30. Based on the written evidence, the Tribunal is not satisfied that Mrs Cirillo’s condition of trigeminal neuralgia was fully diagnosed, treated and stabilised during the relevant period.  Dr Prentice’s reports show that he was still trying to find suitable medication to assist Mrs Cirillo.  The report dated 28 May 2014 shows that Dr Prentice was still trying to find the right balance for her.

31. No points can therefore be awarded for this condition during the relevant period.

    Temporomandibular joint pain (TMJ pain)

32. In her report dated 20 May 2014, Dr Ranasinghe stated that Mrs Cirillo suffered from TMJ pain.  Dr Ranasinghe stated that the treatment comprised physiotherapy.  She stated that her patient’s condition caused head ache and ear pain.  Dr Ranasinghe stated that the condition had been diagnosed by a specialist but did not provide any further details except that future treatment would be to continue physiotherapy. 

1. In a JCA report dated 8 July 2014, the assessor notes:

   Temporomandibular joint pain.  No onset/diagnosis dates noted on TDR. Treatment noted as physiotherapy.  Client could not confirm this.  Client reported that she saw specialist for investigations.  Due to limited treatments this condition is not considered FDTS at this stage.

2. There is limited evidence before the Tribunal about the date of diagnosis, the physiotherapy undertaken and whether the condition has stabilised.  The respondent contends that Mrs Cirillo’s TMJ pain was not fully diagnosed, treated and stabilised during the relevant period due to lack of information about the condition’s effects on her.  The Tribunal notes there is no mention of the condition in an undated letter received from Dr Ranasinghe on 10 April 2015, in which the doctor suggests that Mrs Cirillo should be awarded 20 points for a number of her conditions.

   The evidence before the Tribunal is insufficient for it to be satisfied that the condition has been fully treated and stabilised.  Therefore no points are awarded for the condition.

   Neck pain

3. Mrs Cirillo mentioned neck pain when she was being assessed for a JCA report on 29 September 2014.  The assessor wrote:

   Neck pain diagnosed may 2014.  Client has had two sessions of physiotherapy so far therefore condition is not fully treated and stabilised.

4. There was no mention of the neck condition in Dr Ranasinghe’s report dated 20 May 2014.  In his report to Dr Ranasinghe dated 28 May 2014 (cited at paragraph 29 above), Dr Prentice mentioned that an MRI revealed Mrs Cirillo did have some issues with her neck but there was no evidence of any upper cervical radiculopathy. 

5. The Tribunal accepts the respondent’s submission that there is no medical evidence to support a finding that Mrs Cirillo suffers from any functional impairment as the result of a neck condition.  She is therefore not awarded any points for this condition.

   Depression

6. Table 5 of the Impairment Tables covers mental health function.  The preamble at the start of the table states:

   Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).

   ·   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).

   ·   Self-report of symptoms alone is insufficient.

7. On 10 January 2014 Dr Ranasinghe referred Mrs Cirillo to Charlotte Brewer, a mental health social worker, for opinion and management.  Dr Ranasinghe stated that her patient suffers dysthymia due to ongoing stressors. 

8. In her DSP report dated 20 May 2014, Dr Ranasinghe stated that Mrs Cirillo’s depression was due to chronic severe disabling pain.

9. In the JCA report dated 8 July 2014, the assessor has noted the following regarding Mrs Cirillo’s depression:

   Client reported that she was diagnosed with depression by her GP.  She has counselling as needed.  There is no evidence that client has accessed the services of a clinical psychologist or psychiatrist therefore this condition is not considered FDTS.

10. In a letter to the respondent’s solicitor dated 9 November 2015, Michelle Eldridge, psychologist, stated:

    I am writing to verify that Pina has been referred to me by her General Practitioner for psychological counselling. Pina attended six sessions from 4/05/15 to 22/10/15.  Pina was referred with Chronic Major Depression on the background of Chronic Pain….

11. The sessions with Ms Eldridge commenced almost a year after Mrs Cirillo’s DSP claim.  There is no evidence that she attended sessions with a psychologist during the relevant period.

12. Mrs Cirillo’s depression has not been diagnosed by a psychiatrist or confirmed by a clinical psychologist. Therefore, the Tribunal is unable to allocate any points for this condition.

    Hearing loss

13. In an Outpatient Letter dated 20 December 2012 addressed to a consultant surgeon at Goulburn Valley Health, there are references to a number of medical conditions including hearing loss and neck issues.  In relation to hearing loss, the report states:

    Of note is a recent audiogram which has shown right-sided mixed hearing loss with a significant conducive element…

14. In her DSP report dated 20 May 2014, Dr Ranasinghe mentions Mrs Cirillo’s right ear hearing loss in the section of the report that asks if the patient has any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function. 

15. In a JCA report dated 29 September 2014, the assessor notes:

    Right ear hearing loss.  No treatments reported therefore condition is not considered fully treated and stabilised.  No hearing difficulty observed during this assessment.

16. Dr Ranasinghe referred Mrs Cirillo for a hearing test on 21 November 2014, which is some two months after the relevant period.

17. The Tribunal is unable to award any points for hearing loss on the basis that during the relevant period, the condition was not fully diagnosed, treated and stabilised.

    Ischaemic Heart Disease (IHD)

18. Dr Ranasinghe, in a report received by the Tribunal on 10 April 2015, stated that her patient had an irregular heart beat and that her condition was permanent.  Dr Ranasinghe stated that the condition had been fully diagnosed, treated and stabilised.  She stated that Mrs Cirillo was taking aspirin and metoprolol for this condition.  Dr Ranasinghe stated that her patient is likely to have difficulty sustaining work related tasks of a clerical nature.  She suggested the condition warranted 20 points under Table 1 of the Impairment Tables.

19. The condition was not mentioned in Dr Ranasinghe’s report dated 20 May 2014.  In an undated report provided by the respondent, Dr Ranasinghe mentions the IHD as being a condition that is generally well managed and that causes minimal or limited impact on ability to function.  

20. The Tribunal concurs with the respondent’s submission that apart from the limited conflicting information provided by Dr Ranasinghe, there is insufficient evidence about the impact of the condition on Mrs Cirillo to award any points under Table 1 of the Impairment Tables during the relevant period.   

    Conclusion

21. The Tribunal finds that Mrs Cirillo does not meet section 94(1)(b) of the Act during the relevant period as she has not been allocated 20 points for her impairments under the Impairment Tables.

22. The Tribunal accepts that Mrs Cirillo is unable to work and notes that Mrs Cirillo will be eligible for age pension in the near future.  

    DECISION

23. The Tribunal affirms the decision under review.

56.     I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Ms Regina Perton, Member

[sgd]...........................................................

Associate

Dated   29 June 2016

Date of hearing	10 November 2015
Applicant	By Telephone
Advocate for the Respondent	Ms Anna-Lisa Short
Solicitors for the Respondent	Sparke Helmore