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

[2015] AATA 589

Clark and Secretary, Department of Social Services (Social services second review) [2015] AATA  589 (13 August 2015)

Division	GENERAL DIVISION
File Number(s)	2014/6577
Re	Karin Clark
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr Conrad Ermert, Member
Date	13 August 2015
Place	Melbourne

The Tribunal affirms the decision under review.

…………………[sgd]……....................

Mr Conrad Ermert, Member

SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised within the qualification period – whether conditions permanent – zero impairment points – decision affirmed.

Legislation

Social Security Act 1991

Social Security (Administration) Act 1999

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

REASONS FOR DECISION

Mr Conrad Ermert, Member

13 August 2015

INTRODUCTION

1. In March 2014 Miss Clark worked as a traffic controller in New South Wales (NSW).  After leaving that position she moved to Victoria.  On 17 April 2014 Miss Clark had a fall which resulted in her admission to hospital.  She was referred for hip surgery and was placed on a waiting list.

2. On 29 April 2014 Miss Clark submitted to Centrelink a claim for a Disability Support Pension (DSP).  Centrelink is the service provider for the Department of Social Services, the Respondent.  On her claim form she listed depression, anxiety, asthma and ADHD as her disabilities and stated that she was waiting [for a] hip replacement. 

3. On 26 May 2014 a Centrelink officer rejected her claim on the basis that she did not have 20 impairment points.  This decision was affirmed on 17 August 2014 by an Authorised Review Officer (ARO).  On 1 December 2014 the Social Security Appeals Tribunal (SSAT) affirmed the ARO’s decision.

4. This matter is an application for review of the SSAT decision.

   HEARING

5. At the hearing Miss Clark represented herself and gave evidence under oath.                Ms Mirna Pandurevic, a solicitor with Sparke Helmore, represented the Respondent.

6. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). 

7. For Miss Clark I took in as evidence:

   ·Exhibit A1 - Report of an MRI scan of the lumbosacral spine and right hip  by      Dr Ahangar, performed on 6 July 2014; and

   ·Exhibit A2 – Barwon Health Consultation Record dated 28 April 2014.

8. For the Respondent I took in:

   ·Respondent’s Statement of Facts, Issues and Contentions dated 3 July 2015,

   ·ST1 – report of Dr Chang dated 8 May 2015,

   ·ST2 – report of Dr Chang dated 27 April 2015,

   ·ST3 – Job Capacity Assessment (JCA) dated 2 June 2015, and

   ·Exhibit R1 – email from Shane Walter to Nancy Gatt, dated 21 July 2015.

   LEGISLATION

9. The legislation relevant to this matter is contained in the Social Security Act 1991 (the Act).

10. Section 94 of the Act  relevantly prescribes the qualifications for DSP:

    (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

11. Impairments are assessed by reference to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).

    QUALIFICATION PERIOD

12. Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) provide that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified.

13. In this case the qualification period is from 29 April 2014 to 29 July 2014. 

    ISSUES

14. The issues are whether, during this qualification period, Miss Clark

    ·had any physical, intellectual or psychiatric impairments; and, if so

    ·the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so

    ·she had a continuing ability to work.

    EVIDENCE

15. Miss Cark was concerned that her back condition was not considered in the assessment of the claim for DSP that she lodged in April 2014.  She said that when she submitted her claim she did not have information from the surgeon about her back.  Since then she has undergone an MRI examination of the lumbosacral spine and right hip, the report of which is contained in Exhibit A1.  She referred to the section of the report under the headings Lumbrosacral Spine and Conclusion and said that she had nerve damage and stenosis, that all her tendons were damaged, and that she had tendonitis and a thickening of the hamstrings.

16. In answer to questions about her back condition Miss Clark stated she was taking pain killer medications, she had to use crutches, her L5 vertebra has now cracked and the surgeons cannot operate on her back because of the risk of serious infection.  She said she saw Mr Andrew Thomson, an orthopaedic surgeon, who told her she could not have a back operation because of the risk of complications.  She said Mr Thomson prescribed medication for her back pain and later increased the dosage.  Miss Clark said the dosage was increased yet again on 10 March 2015.

17. In response to questions about her depression, anxiety and attention deficit hyperactivity disorder (ADHD) Miss Clark said her mental health problems started when she was seven.  She said she has been on anti-depressants since 1993.  She stated that she has consulted psychiatrists in NSW and Victoria and that she has counselling sessions every three months with a psychologist. 

18. Ms Pandurevic referred to the report of Dr Golden, psychiatric registrar, dated 2 July 2014 (T-16), noting that Dr Golden recorded that her symptoms were exacerbated by physical pain.  Miss Clark disagreed with this. When asked about the stressors from which she was suffering Miss Clark said she had had to leave her work although she wanted to keep working; she had to come to Geelong where she hated living; for a time she was homeless; and everything was stressful.

19. Ms Pandurevic asked Miss Clark how her condition affected her life during the qualification period.  Miss Clark made the following points:

    ·Her grandson did not come to see her because she was on crutches

    ·Her girlfriend treated her like a child

    ·She could not drive

    ·She had no social or recreational life

    ·The medications drugged her out

    ·Her family would not come to see her as she was always in bed

    ·Her concentration was bad and she could no longer do puzzles,  and

    ·She just sat at home.

20. Miss Clark said that her conditions were worse now than at the time of the qualification period.

21. When asked about her chronic obstructive pulmonary disease (COPD) and asthma     Miss Clark said she was first diagnosed with the condition in 1993.  She said her asthma became worse in 2007.  Miss Clark said that Dr Chang organises lung function tests for her every 12 months. 

22. Miss Pandurevic referred to Dr Chang’s report of 10 June 2014 in which he recorded that Miss Clark’s asthma and emphysema are generally well managed and cause minimal or limited impact on her ability to function.  Miss Clark said that each day she has to take multiple medications for these conditions and that her medications have doubled over the last 18 months.  She said that she has used an inhaler for the last 12 to 18 months.  In regard to the impact on her ability to function Miss Clark said that could not breathe.  She said she could not walk far or make the bed as she became out of breath. 

23. In regard to her emphysema Miss Clark said that

    ·it was first diagnosed in 2007;

    ·she did not know when she might have the next attack;

    ·she had more attacks last year; and

    ·her breathing became worse last year.

24. In regard to her right hip Miss Clark said that while she was in Sydney in 2011 she had a fall which resulted in a lot of pain.  She said tests were undertaken and she was seen by an orthopaedic specialist.  Miss Clark said she had another fall in April 2014 for which she was seen by Dr Lee in the University Hospital Geelong. Miss Clark was referred for hip surgery and put on a waiting list.  She said she was given a cortisone injection on          29 July 2014 to ease her pain but it did not work. 

25. Ms Pandurevic asked about the impact of the right hip condition.  Miss Clark said she could walk with crutches, but only to the letter box and back again.  She said she could not walk into shopping centres and would stay in the car. 

26. Ms Pandurevic referred to the reasons for the SSAT’s decision (T-2, pages 7 and 8) in which that tribunal recorded Miss Clark’s evidence as [t]o get up a couple of stairs she needs to hold onto a rail.  Miss Clark said that was not correct.  She said that her crutches prevented her from climbing stairs at all. Ms Pandurevic referred to that part of the SSAT decision which stated that Ms Clark is unable to walk far outside her home…but drives if she has to.  Miss Clark said emphatically that she drove only when she had to go to the doctor’s surgery and her girlfriend was not able to drive her.  She said she had no other means of getting to the surgery.

27. When asked whether she had experienced any relief following her hip replacement surgery in January 2015 Miss Clark said that she still suffered pain and she had nerve damage and bulging discs in her back because one leg was now shorter than the other.  She described her current and future treatment as follows:

    ·Seeing a infectious diseases specialist each month;

    ·Having blood tests each month;

    ·Taking antibiotics; and

    ·Attending a disease control clinic in the future.

28. Miss Clark said that as a result of her hip condition:

    ·She has pain all the time;

    ·She has to hold on to something to stand up and sit  down;

    ·To walk she needs crutches to prevent falling; and

    ·She cannot straighten her leg in bed at night.

29. I asked Miss Clark whether Dr Chang had had access to all the relevant medical information at the time of preparing his own reports.  She said that he did.

30. Ms Pandurevic asked further questions of Miss Clark in regard to the programs of support she had undertaken. I will deal with this evidence later if necessary.

    SUBMISSIONS

31. In summary Miss Clark submitted that she

    ·is unable to work because of her medications and the high risk of falls;

    ·cannot go out, cannot play with her grandchild and has no social life;

    ·needs someone with her the whole time; and

    ·would like to work but no-one will employ her, even for voluntary work, because of her conditions.

32. Miss Clark contended that she had done everything she had been told to do and that all her conditions were fully diagnosed, treated and stabilised.

33. Relying on the Respondent’s Statement of Facts, Issues and Contentions, Ms Pandurevic contended that, during the qualification period of 29 April 2014 to 29 July 2014 Miss Clark’s conditions were not fully diagnosed, treated and stabilised and therefore did not attract an impairment rating totalling 20 points.  In particular, she argued that:

    ·The right hip was not fully treated;

    ·The depression, anxiety and ADHD were not fully treated and stabilised;

    ·In the absence of specialist opinion, the asthma and COPD were  not fully diagnosed and treated; and

    ·There is insufficient medical evidence to confirm that the back condition was fully diagnosed, treated and stabilised.

    TRIBUNAL CONSIDERATIONS

34. The Respondent concedes, correctly in my opinion, that during the qualifying period     Miss Clark had impairments from the following conditions, which satisfied the requirements of section 94(1)(a) of the Act:

    ·Right hip osteoarthritis;

    ·Psychiatric conditions – depression, anxiety and ADHD;

    ·Asthma/COPD; and

    ·Lower back injury.

35. The Respondent’s concession is in accordance with the evidence and I find accordingly.

36. I must now determine whether Miss Clark’s impairments attract an impairment rating of 20 points or more under the Impairment Tables as required by section 94(1)(b) of the Act.

37. Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition is permanent and the impairment is likely to persist for more than two years.  Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and fully stabilised.

38. Section 6(5) of the Impairment Tables explains that, for a condition to be considered fully diagnosed and treated by an appropriately qualified medical practitioner, the following must be taken into account:

    (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 2 years.

39. I will consider each condition in turn.

    Right Hip Osteoarthritis

40. In its Statement of Facts, Issues and Contentions the Respondent accepts that           Miss Clark’s right hip condition was fully diagnosed. However, the Respondent   argues that it could not have been fully treated and stabilised at the qualification period.  In support of this contention Ms Pandurevic submitted that there is evidence of an intention for Miss Clark to undergo a total hip replacement during the qualifying period.                Ms Pandurevic said that this showed that that all reasonable treatment could not have been completed as the hip replacement was done in January 2015,   after the qualification period.

41. I accept that the right hip condition was fully diagnosed at the qualification period.  In regard to the issue of whether it had been fully treated I note the following evidence:

    ·Dr Chang’s report of 10 June 2014 (T-15) in which he wrote: Future/planned treatment – hip surgery (urgent list);

    ·Miss Clark’s evidence that she had an injection to her right hip on 29 July 2014 to ease the pain, but it was not effective;

    ·The report of Dr Chang dated 24 September 2014 (T-22) in which he wrote: A corticosteroid injection to her right hip was of no help.  She has already been assessed by the orthopaedic surgeons at Geelong Hospital who agree she should have total hip replacement as soon as possible;

    ·Miss Clark’s evidence that she underwent a total right hip replacement in January 2015; and

    ·Dr Chang’s report of 8 May 2015 (ST1) in which he recorded that “[w]hilst C’s condition was expected to improve with total hip replacement surgery, her hip surgery in January 2015 was unfortunately complicated by infection of the hip prosthesis.  This necessitated a re-admission to St Vincent’s Hospital.

42. I am satisfied from the evidence above that the right hip condition was not fully treated at the time of the qualification period. 

43. Section 6(4) of the Impairment Tables stipulates that a condition must be fully treated in order to be permanent.  Section 6(3) of the Impairment Tables provides that an impairment rating can be applied only to conditions that are permanent at the time of the qualification period.  Accordingly I am not able to assign an impairment rating to the condition of the right hip.

    Psychiatric Condition – Depression, Anxiety and ADHD

44. In the Statement of Facts, Issues and Contentions the Respondent accepts that         Miss Clark has a longstanding history of anxiety, depression and in particular ADHD.            Ms Pandurevic did not contest that this condition was fully diagnosed.

45. I note Dr Golden’s report of 2 July 2014 (T-16) in which he wrote that Miss Clark was diagnosed with adult ADHD by Dr Dennis Shum in 2001.  His own diagnosis was ADHD, Adjustment disorder with ongoing stressors associated with depressive and anxiety symptoms. Generalised Anxiety. 

46. Dr Golden is a psychiatric registrar.  I accept that the diagnosis of Miss Clark’s condition was made by an appropriately qualified medical practitioner as required by the Introduction to Table 5.  I therefore find that Miss Clark’s psychiatric condition was fully diagnosed. 

47. In considering whether this condition had been fully treated and stabilised I accept as the best evidence the contemporaneous report of the specialist psychiatrist.  In his report    (T-16) Dr Golden prescribes Dexamphetamine at the same dosage as Miss Clark was taking previously.  He then notes “[i]n terms of smoking cessation and antidepressant augmentation consider Zyban, starting at 150mg for a week and then increasing to 150mg bd…The Deakin Mood and Anxiety Group would be very helpful to enable Karin learn skills to manage her anxiety but she needs to be stable on her Dexamphetamine prior to this…Karin’s pending surgery is a major stressor and she will be more reassured when it is completed. 

48. Dr Golden prescribed an increasing dosage of Zyban as an antidepressant.  His statement that Miss Clark needed to be stable on her Dexamphetamine before attending further therapy indicates that as at 2 July 2014, Miss Clark’s condition was not fully stabilised.  As the qualification period runs only until 29 July 2014 I do not consider it realistic that the effects of Miss Clark’s medications would have stabilised in that time. Nor is there any evidence of such an effect. 

49. Although Miss Clark denied that her symptoms were exacerbated by physical pain,        Dr Golden expected her condition to improve after her hip replacement surgery which he described as a major stressor.  As it transpired the hip replacement brought its own complications.  At the time, however, there was no indication of any expectation other than for a successful outcome. 

50. Based on the prescription for an increasing dosage of medication, the need for Miss Clark to become stable before further therapy and the expectation of an improvement in the condition following the hip surgery in January 2015, I am not satisfied that Miss Clark’s psychiatric condition was fully stabilised during the qualification period.  I find accordingly.

51. Section 6(4) of the Impairment Tables provides that a condition must be fully treated and fully stabilised in order to be permanent.  Section 6(3) of the Impairment Tables provides that an impairment rating can be applied only to conditions that are permanent.  Accordingly I am not able to assign an impairment rating to Miss Clark’s psychiatric condition.

    Asthma/COPD

52. Miss Clark testified that she has a long history of asthma.  She said she had an attack in 2001 which required hospitalisation.  She said she last saw a lung specialist in 2007 but Dr Chang arranges for her to have lung function tests every 12 months.  Miss Clark stated she also has emphysema which has become worse in the last year. 

53. Miss Clark described the effect of her asthma, emphysema and COPD as an inability to breathe.  She said she cannot walk far and cannot even make the bed without losing her breath.

54. Ms Panduravic submitted that, in the absence of specialist medical opinion, Miss Clark’s lung conditions could not be considered fully diagnosed, treated and stabilised.

55. The Job Capacity Assessment (JCA) report of 21 May 2014 recorded the opinion that the COAD (diagnosed as COPD) and asthma were fully diagnosed, treated and stabilised.  I note however that the basis for that opinion was the report by  Dr Lee dated 23 April 2014 (T-6).  In that report Dr Lee recorded the conditions of COPD and asthma as being other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function. 

1. In his report of 10 June 2014 (T-15) Dr Chang listed Miss Clark’s asthma and emphysema in the same category.

2. In their reports both Dr Lee and Dr Chang accept that Miss Clark suffered from these conditions.  I am therefore satisfied that the doctors consider the conditions diagnosed.  Dr Lee wrote that the conditions were managed by the use of an inhaler.  Dr Chang records that they were managed by medication.  There is no record of a requirement for other treatment or investigation.  In his report dated 8 May 2015 (ST1), referring to the qualifying period, Dr Chang stated that Miss Clark’s asthma was fully diagnosed, treated and stabilised.

3. Although there is no available evidence from a specialist I am satisfied from the opinions of both Dr Lee and Dr Chang that at the qualifying period the conditions of asthma and COPD were fully diagnosed treated and stabilised.  I find accordingly.

4. In considering the functional impact of these conditions I note the contemporaneous reports of both Dr Lee and Dr Chang in which they recorded the conditions as causing limited or minimal impact on Miss Clark’s ability to function.  As a result, I find that the conditions of asthma and COPD attract zero points according to the Impairment Tables. 

   Emphysema

5. Emphysema is listed as a condition suffered by Miss Clark at the qualifying period and I will consider it separately from her asthma and COPD. 

6. Miss Clark contends that this condition was fully diagnosed, treated and stabilised.  However I note that the only mention of this condition appears in Dr Chang’s report of    10 June 2014.  Importantly, he does not mention emphysema in his later report of       May 2015. I note also Miss Clark’s evidence that she had more attacks last year and that the condition is getting worse. 

7. In the absence of further medical opinion I am not satisfied that the condition of emphysema has been fully diagnosed, treated or stabilised.  I find accordingly. 

8. As the condition is not fully diagnosed, treated and stabilised I cannot assign it an impairment rating.

   Lower Back Injury

9. Miss Clark contends that her lower back condition was fully diagnosed, treated and stabilised.  In her evidence she said she has been taking pain killers and has to use crutches.  Miss Clark said that she consulted an orthopaedic surgeon, Mr Thomson, who prescribed medication.

10. Ms Pandurevic accepted that Miss Clark had the condition during the qualifying period but contended that there was not sufficient medical evidence to support a finding that it was fully diagnosed, treated and stabilised.

11. The MRI scan of Miss Clark’s lumbosacral spine and right hip conducted on 6 July 2014 (Exhibit A1) records moderate facet degeneration of the lower lumbar spine.  The scan was conducted by Dr Ahangar, a Radiology Fellow at University Hospital of Geelong.  There are no reports available to me from the specialist, Mr Thomson.  Nevertheless I accept Dr Ahangar as being a medical practitioner who is appropriately qualified to make this diagnosis on the basis of the MRI scan and I find that the condition of lower back injury to be fully diagnosed.

12. There is no medical evidence before me regarding treatment during the qualification period, or of any treatment after it. There is no medical evidence by which to determine whether the condition was fully treated and stabilised.  Without further medical evidence I am unable to determine that the condition was fully treated and stabilised. 

13. As I cannot find that the condition was fully treated and stabilised I cannot conclude that the condition is permanent as required by section 6(3) of the Impairment Tables and I cannot assign it an impairment rating.

    Total Impairment Rating

14. I have made the following findings in regard to the five conditions:

    ·Right hip – not fully treated. Therefore, I am unable to assign a rating;

    ·Psychiatric condition – not stabilised. Therefore I am unable to assign a rating;

    ·Asthma/COPD – zero impairment points, as they have no functional impact;

    ·Emphysema – not fully diagnosed, treated and stabilised. Therefore, I am unable to assign a rating; and

    ·Lower back injury – not fully treated and stabilised. Therefore, I am unable to assign a rating.

15. As a result, the total impairment rating for Miss Clark’s impairments is zero points. 

    CONCLUSION

16. The total impairment rating is less than the 20 points required to satisfy section 94(1)(b) of the Act.  In order to comply with section 94(1) of the Act, each of its sub-sections must be satisfied.  Therefore, Miss Clark does not satisfy the requirements of section 94(1)(b) of the Act.  As a result, she cannot satisfy all the provisions of section 94(1) of the Act and there is no need for me to consider the other sub-sections of section 94(1).

17. The result is that during the qualification period Miss Clark was not qualified for DSP and I find accordingly.

18. This finding relates to Miss Clark’s condition at the end of July 2014.  If Miss Clark feels that her conditions have changed since that time she is at liberty to submit a further application to Centrelink for DSP.

    DECISION

19. I affirm the reviewable decision.

75.     I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert

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

Associate

Dated 13 August 2015

Date of hearing	22 July 2015
Applicant	In person
Advocate for the Respondent	Kellie Latta
Solicitors for the Respondent	Sparke Helmore