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

[2016] AATA 718

Clacy and Secretary, Department of Social Services (Social services second review) [2016] AATA 718 (16 September 2016)

Division	GENERAL DIVISION
File Number	2016/0045
Re	Melanie Clacy
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr D. J. Morris, Member
Date	16 September 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – rejection – whether conditions fully diagnosed, fully treated and fully stabilised – impairments only to be assigned under one Impairment Table – medical practitioner’s general description of condition - do impairments attract 20 points or more under Impairment Tables – not qualified – later submissions point to further deterioration in condition – reviewable decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975

Social Security Act 1991 – s 94(1) – s 94(1)(a) – s 94(1)(b)

Social Security (Administration) Act 1999 – Schedule 2 Cl 4(1)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

D. J. Morris, Member

16 September 2016

BACKGROUND

1. Mrs Melanie Clacy seeks a review of a decision of the Social Services and Child Support Division of the Tribunal (AAT1) on 15 December 2015 to reject her application for Disability Support Pension (DSP) made on 30 June 2015. 

2. The hearing was held on 16 August 2016 by telephone. Mrs Clacy chose not to appear and she was represented at the hearing by her husband, Mr Ben Clacy.  The Tribunal noted at the outset that it was a matter for an Applicant as to how he or she chooses to put his or her case before the Tribunal within the framework of the Administrative Appeals TribunalAct 1975 (AAT Act).  However, the Tribunal also stated that, in the absence of any reason proffered why the Applicant was not appearing, first-hand evidence from the Applicant about her medical conditions and the effects it has on her daily activities and ability to work would have been useful to the Tribunal.

3. The Respondent was represented by Ms Ailsa Bramley.  Mr Clacy made submissions on the Applicant’s behalf and gave evidence under affirmation and was cross-examined by counsel for the Respondent.

4. The Respondent tendered documents lodged under section 37 of the AAT Act (the T-documents).

5. Seven documents were tendered by the Applicant at the hearing:

   ·Medical report from Dr Sujeewa Fernando, general practitioner, dated 4 April 2016 (Exhibit A1);

   ·Medical report from Dr Fernando dated 24 February 2016 (Exhibit A2);

   ·Letter from Mr Brenton May, physiotherapist, of Lifecare Frankston Physiotherapy, dated 9 February 2016 (Exhibit A3);

   ·Letter from Mr Kris Letcher, mental health nurse, of Belvedere Park Medical Clinic dated 2 February 2016 (Exhibit A4);

   ·Modified Discharge Summary undated but received by the Tribunal on 24 February 2016 (Exhibit A5).

   ·Medical report from Dr Michael Gingold, rheumatologist, dated 28 July 2016 (Exhibit A6).

   ·Peninsula Health Homeowner’s Authority for Home Modifications, dated 22 June 2016 (Exhibit A7).

6. Subsequent to the hearing, the Applicant submitted a further document on 1 September 2016:

   ·Letter from Ros Wright, Occupational Therapist, Peninsula Health, dated 30 August 2016.

7. In response to the late submission dated 30 August 2016, the Respondent submitted:

   ·Letter dated 2 September 2016 from Ms Ailsa Bramley, Senior Government Lawyer, Department of Human Services.

8. These documents formed part of the material before the Tribunal in considering whether the original decision was correct.

   BACKGROUND

9. Mrs Clacy is a 44 year old lady who applied for DSP on 30 June 2015 in respect of the following cited health conditions: fibromyalgia, diabetes mellitus, dyslipidaemia and Irritable Bowel Syndrome (IBS)

10. On 11 August 2015 Mrs Clacy participated in a Job Capacity Assessment (JCA).  The assessor, who was a registered occupational therapist, made certain assessments of her cited medical conditions and on 13 August 2015 Mrs Clacy was advised by the Department of Social Services (‘the Department’) that her claim was rejected.

11. Mrs Clacy sought a review of the decision by an Authorised Review Officer (ARO).  On 13 August 2015 the ARO affirmed the decision.

12. Mrs Clacy brought an application for review of the ARO’s decision to the Social Services and Child Support Division of this Tribunal (AAT1).  On 15 December 2015 AAT1 affirmed the ARO’s decision.

13. On 4 January 2016 Mrs Clacy lodged an application for second-tier review with the Tribunal.  This is the hearing of the matter.

    THE LAW

14. For a person to be qualified for DSP, the person’s claim must be assessed under section 94(1) of the Social Security Act 1991 (the Act) and the qualification criteria for DSP must be satisfied.  For this reason, it must be established that the person has –

    ·A physical, psychological or mental impairment;

    ·This impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and

    ·The person must have a continuing inability to work.

    Does the Applicant have a physical, psychological or mental impairment?

15. The JCA conducted on 11 August 2015 considered the medical conditions of the Applicant.

16. For an impairment to be assigned a rating under the Act, the impairment must be ‘permanent’. In this context, ‘permanent’ means fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years.

17. In terms of the Applicant’s fibromyalgia, the JCA decided that this condition was fully diagnosed, fully treated and fully stabilised and recommended assigning an impairment rating of 10 points under Table 3 – Lower Limb Function, and 5 points under Table 2 – Upper Limb Function of the Impairment Tables. The Impairment Tables form part of a ministerial determination made under the Act, the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. 

18. The JCA noted the medical reports from Dr Sujeewa Fernando dated 16 March 2015 and Dr Michael Gingold dated 26 February 2015 and written advice from Mrs Clacy that she was undergoing physiotherapy and hydrotherapy.  It was noted that the condition was likely to persist for more than 24 months and that, by its nature, fibromyalgia fluctuates in intensity, but it is a chronic condition. 

19. In terms of the Applicant’s diabetes mellitus, the JCA decided that the condition was fully diagnosed, fully treated and fully stabilised.   It is a condition likely to persist for longer than 24 months.  Dr Fernando described it as ‘stable’ and it was noted that the Applicant sees a diabetic educator and dietician.  The applicable table to assess this condition is Table 1 – Functions requiring Physical Exertion and Stamina.  As there was assessed to be no functional impairment from this condition, the assignment rating of zero points was recommended under the provisions of Rule 11(5) of the determination.

20. In terms of other conditions of Mrs Clacy, the JCA considered that her mental health condition and morbid obesity were generally well-managed and caused minimal functional impact.  In terms of the IBS, Mr Clacy told the hearing that the Applicant was taking new medication and it was “not as bad as it used to be”.

21. The JCA found that Mrs Clacy had a capacity to work up to 7 hours a week, increasing to 23-29 hours a week, within two years, with intervention.

22. The ARO considered the JCA report and medical reports provided by Dr Fernando and Dr Gingold and decided that the Applicant’s conditions of fibromyalgia and diabetes are not considered to be fully diagnosed, fully treated and fully stabilised and therefore cannot be assigned an rating under the Impairment Tables, and the other conditions listed in the medical reports provided by Dr Fernando of obesity and high cholesterol had minimal or limited effect on her ability to function.  The ARO therefore decided that no points could correctly be allocated under the Impairment Tables.

23. When AAT1 considered the application brought by Mrs Clacy that the Department’s decision was wrong, it affirmed the ARO’s decision.  AAT1 found that the fibromyalgia and diabetes conditions were not fully diagnosed, fully treated and fully stabilised and that the high cholesterol and obesity conditions caused no appreciable impairment of function. It also found that the Applicant’s mental condition (anxiety/depression) could not be assessed as there was no evidence that this condition had been diagnosed by a psychiatrist or a clinical psychologist as is required in the introduction to Table 5 – Mental Health Function, of the Impairment Tables.

    QUESTION BEFORE THE TRIBUNAL

24. The matter the Tribunal is considering is whether the Applicant, Mrs Clacy, was qualified for DSP on the date of her application, 30 June 2015 or, applying Schedule 2, clause 4(1) of the Social Security Administration Act or whether she became qualified in the thirteen week period after that date, a period that concludes on 29 September 2015 (‘the relevant period’).

25. The Tribunal considers the application afresh to decide whether the reviewable decision was the correct and preferable decision.  While it may note the decision of AAT1, it was explained during the hearing that this hearing is not an analysis of what was found at that previous hearing.  I may agree with some of the conclusions the Member made at that hearing or I may find otherwise.

    Medical evidence and the Impairment Tables

26. In his medical report dated 16 March 2015, Dr Fernando listed the Applicant’s fibromyalgia as the condition which has the most impact on her daily life.  He advised that the date of onset of the condition was 2008 with that diagnosis being confirmed by the specialist rheumatologist, Dr Gingold, on 11 March 2015.  Dr Fernando said that the symptoms are multiple joint pain and muscle ache, restless legs, joint stiffness, fatigue, irritable bowel and paraesthesia.  He reported that Mrs Clacy was “severely” restricted in her activities owing to pain and weakness, that she was exhausted after minimal activity and that it affects her daily activities.

27. Dr Gingold in his medical report dated 26 February 2015 advised that the Applicant had had joint and muscle symptoms “for at least 8 or 9 years”.  He reported symptoms of muscle pain and stiffness in joints, poor sleep and being woken by pain, with the consequence of being unrefreshed and constantly fatigued, and bowel irritability; Dr Gingold stated that “all these symptoms are very much in keeping with a diagnosis of Fibromyalgia.”

28. The Respondent Secretary of the Department in his submission accepted that the Applicant’s fibromyalgia condition was fully diagnosed, fully treated and fully stabilised.  The Respondent disagreed with AAT1 which decided the condition was not fully diagnosed, fully treated and fully stabilised because of the lack of evidence of the Applicant’s bowel issues and the absence of evidence of the impact on Mrs Clacy’s cognitive functions.

29. I note that Mrs Clacy only participated very briefly in the hearing conducted by AAT1, towards the end of the hearing.  That naturally had an effect on what evidence AAT1 was able to hear from her first-hand.  After taking into account the evidence of Dr Gingold, who is a specialist medical practitioner in rheumatology, and the report of the JCA, in which Mrs Clacy participated, I prefer the conclusions of the face-to-face JCA in assessing the fibromyalgia condition. 

30. Accordingly, I find that the fibromyalgia condition of the Applicant is fully diagnosed, fully treated and fully stabilised.

31. However, Rule 8 of the Impairment Tables also requires me to consider corroborative evidence of conditions.  Mr Ben Clacy told the hearing about difficulties his wife has with her continence but, while I do not dispute that he was being truthful, the Tribunal also must have corroborative evidence before considering whether this functional impact can be assessed under Table 13 – Continence Functions.  Because of this lacuna, it is not possible for me to assign a rating under Table 13. 

32. I am satisfied that there is corroborating evidence, as referred to above, from the face-to-face JCA and from the reports of Dr Gingold and Dr Fernando, to assign 15 point in total for this condition – that is, 5 points from Table 2 – Upper Limb Function and 10 points from Table 3 – Lower Limb Function.  I so find. 

33. The Impairment Tables provide, at Rule 10(3) that where a single condition causes multiple impairments, then each impairment should be assessed under the relevant Table.  On the medical evidence before the Tribunal, the Applicant’s fibromyalgia condition is such a condition.

34. The Applicant also cites diabetes as a condition in her application.  Dr Fernando’s report dated 5 June 2015 corroborates that she has Type 2 non-insulin dependent diabetes mellitus and advised that the effect of the condition was tiredness and poor exercise tolerance.  It may be that Mrs Clacy’s fatigue is also partly because of the fibromyalgia but, under Rule 10(5) of the ministerial determination, where there might be a common impairment resulting from two or more conditions, 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.

35. The Respondent accepted that the diabetes condition was fully treated, fully treated and fully stabilised. Dr Gingold said the condition was well managed.  After consideration, I find that this condition is a permanent condition capable of being assigned impairment points under the Determination.

36. I find that there is no functional impact on the Applicant from her diabetes condition and therefore this condition must, under Rule (5) of the Impairment Tables, be assigned zero points.

37. In terms of a mental health condition, Mr Clacy in his evidence at the hearing said that there was “nothing mentally wrong with” the Applicant.  Dr Fernando said that Mrs Clacy had “Anxiety and depression” but that this condition was “managed and stabilised on medication” and that it caused minimal or limited impact on her ability to function.  On the other hand, Dr Gingold in his letter dated 26 February 2016 said that Mrs Clacy has:

    significant issues with Anxiety.  This is so severe that it actually interferes with her ability to work as well as drive to areas that she is not familiar with.  If this happens she develops acute panic attacks.  I have explained to her the strong link between Anxiety/Depression and Fibromyalgia and really she needs to address this through Psychology input.

38. In this letter, Dr Gingold was apparently simply reporting what his patient told him.  While I respect his specialist expertise as a rheumatologist in linking anxiety and depression to fibromyalgia, I also note that he did not in this medical report give a definitive diagnosis of the anxiety condition mentioned, and in fact recommended that the Applicant see a psychologist. There is no evidence that Dr Gingold’s recommendation to the Applicant was followed during the relevant period.

39. There is evidence in the JCA and in a letter tendered before the Tribunal that the Applicant had seen Mr Kris Letcher, a mental health nurse at the Belvedere Park Medical Clinic, on several occasions, but her seeing Mr Letcher does not satisfy the diagnosis requirements set out in the introduction to Table 5 of the Impairment Tables because he is not in the category of persons required in the Determination for a diagnosis of a mental health condition.  A mental health condition must have corroborative diagnosis from either a psychiatrist or a clinical psychologist.

40. I therefore find that the Applicant’s mental health condition cannot be considered to be fully diagnosed, fully treated nor fully stabilised in the relevant period.  Following the provisions of Rule 6(4), this condition therefore cannot be assigned points under the Impairment Tables.

41. Use of the word “severe” in medical reports, as Dr Gingold has done in describing the Applicant’s “severe Fibromyalgia” in his medical report of 28 July 2016 and in describing her anxiety as “severe” in his medical report of 26 February 2016 are noted by the Tribunal, but ‘severe’ in the context of applying the Impairment Tables must be related to the Descriptors to each table which assess the functional impact on a person’s activities. Mere use of a word by itself in its generally understood meaning, even by a medical practitioner in a medical report, is not enough for the application of the Determination to the question of qualification under section 94 of the Act, especially where it is not readily apparent that the particular medical practitioner has used the word in the context of the Impairment Tables.

42. Dr Fernando’s most recent letter dated 4 April 2016 does refer to Table 1 and he uses the term “severe impaction” but it is not apparent that this description is referrable to the relevant period.  The letter is written more than six months after the relevant period ends.  Indeed, Dr Fernando states in this letter that Mrs Clacy’s fibromyalgia has been “stable since last year”, but is not more specific about the time. 

43. The Tribunal cannot safely conclude, given the time gap between this medical report and the date of the DSP application on 30 June 2015 that the Descriptors in the Impairment Tables were wrongly applied.  It may possibly be the case that Dr Fernando’s conclusions are accurate, but deterioration in a condition after the relevant period is not something I can take into account – it does not go to whether the original decision was correct.  In fact, deterioration in a medical condition may lead to the opposite conclusion, as discussed above.

44. In addition, I was unable to test any of the assertions about the impact on Mrs Clacy’s daily functions other than by what her husband told the Tribunal, and that is not sufficient for the Tribunal to be satisfied about the correct application of the Act.

    SUBMISSIONS

45. The Applicant provided documents to the Tribunal as referred to above. These documents inform the Tribunal but I must make clear that information must be referrable to the relevant period which the Tribunal is limited to considering by the force of the Act and the Administration Act. Material provided that falls outside this window, that is the period commencing on the date of claim, 30 June 2015, and the date which ends thirteen weeks after the date of claim, 29 September 2015, may be relevant to a future application for DSP but is not relevant to the application under review.

46. On 1 September 2016, after the hearing had been completed but before it had been finalised or published, Mr Clacy made a further submission on behalf of the Applicant. I decided to accept this submission on the basis that, under section 43(5A) of the Administrative Appeals Tribunal Act 1975, the date that a decision is operative is the date on which it is given.  An Applicant, in my view, is entitled to bring forward whatever material he or she believed supports their case.  It is the Tribunal’s job to sift such material into whether it is germane or not germane to whether the original decision was right.

47. Consistent with the principles of procedural fairness, the Respondent was given an opportunity to make a submission responsive to the material provided after the hearing by the Applicant.  The Respondent did so on 2 September 2016.

48. The Occupational Therapy Home Assessment for Mrs Clacy was carried out by Peninsula Health on 8 March 2016.  That is outside the relevant period referred to above.  In addition, this document refers to a change in Mrs Clacy’s mobility:

    Melanie was not able to weight bear after her injury and relied on a manual wheelchair for support; prior to the fracture she experienced reduced mobility and weakness in her lower limbs (legs and ankles) due to Fibromyalgia and used a walking stick.  She is currently using a combination of a manual wheelchair and crutches to support her mobility.

1. Without the benefit of specific dates, this report indicates a possible decline in the Applicant’s mobility.  As the document was submitted after the hearing had concluded, I am unable to test this hypothesis by questioning Mrs Clacy or hearing from her representative.  However, if there is a decline in the Applicant’s condition, it may constitute deterioration.  Deterioration in her condition would logically lead to a conclusion that her ambulant abilities were not stabilised in the relevant period.

2. In his response to the late submission, the Respondent Secretary asserted that the report from Peninsula Health referred to the Applicant’s impairments and an incident outside the relevant period without referring to how Mrs Clacy was in the relevant period.

3. The Tribunal does not necessarily accept the Respondent’s submission in this regard.  In my view, submissions about a person’s general medical condition provided after a relevant period may, in fact, be reasonably referrable to the period when they made a claim. Each application turns on its own facts – this Tribunal must consider the merits of a decision and whether it was correct at the time it was made – in all the circumstances. However, the fact that the document itself points to a potential deterioration does not assist the Applicant in her quest to satisfy section 94 of the Act, because Rule 6(4) of the Impairment Tables requires that a condition be “fully stabilised”.

   CONCLUSION

4. Finding that the Applicant is correctly assigned 15 points under the Impairment Tables, the outcome for Mrs Clacy is that the original decision was correct, because she was not assigned 20 or more points and therefore did not satisfy the statutory imperative of section 94(1)(b). It is essential that a person qualifying for DSP is able to satisfy all the parts of section 94, and as her application did not satisfy section 94(1)(b), it fails.

5. This being the case, it is not necessary for the Tribunal to go on to consider whether the Applicant satisfies section 94(c), a continuing inability to work.

6. I realise that this outcome will be disappointing to Mrs Clacy but find that the Act was correctly applied in the decision taken by the Department.

   DECISION

7. The Tribunal affirms the decision under review.

56.      

57.      

58.     I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Member Don Morris.

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

Associate

Dated 16 September 2016

Date of hearing	16 August 2016
Applicant’s Representative	Mr Ben Clacy (by phone)
Advocate for Respondent	Ailsa Bramley, Senior Government Lawyer, Department of Social Services