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

[2015] AATA 948

Collins and Secretary, Department of Social Services (Social services second review) [2015] AATA 948 (10 December 2015)

Division	GENERAL DIVISION
File Number	2015/2955
Re	Brigida Collins
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	10 December 2015
Place	Brisbane

The decision under review is affirmed.

..................................[Sgd]......................................

Deputy President Dr P McDermott RFD

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether applicant had relevant impairment – conditions of lateral epicondylitis, plantar fasciitis, vitamin D deficiency, fibromyalgia, osteoarthritis, depression – whether “permanent” – whether applicant’s impairment fully diagnosed, treated and stabilised – conditions “likely to improve” or “fluctuate” – conditions have limited impact on ability to function – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth), Schedule 2, Clause 4

SECONDARY MATERIALS

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

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

10 December 2015

INTRODUCTION

1. The applicant, Mrs Brigida Collins, lodged a claim for disability support pension on 24 March 2014. Centrelink rejected her claim on 7 May 2014. That decision was affirmed on internal and external review. Mrs Collins seeks a review of the decision to refuse her application for disability support pension. I now have to determine whether her claim for disability support pension should be granted.

2. The relevant period to consider her eligibility is at the time of claim, 24 March 2014, and in the period of 13 weeks thereafter (to 23 June 2014).[1] The criteria that must be satisfied is set out in s 94(1) of the Social Security Act 1991 (Cth). That subsection sets out three critical criteria. The person must have a physical, intellectual or psychiatric impairment;[2] the impairment must attract an assessment of 20 points or more under the Impairment Tables;[3] and the person must have a continuing inability to work (as that term is defined in the Act).[4] During the hearing I outlined to the applicant those provisions in s 94(1).

   [1]           Social Security (Administration) Act 1999 (Cth), Schedule 2, Clause 4.

   [2]           Social Security Act 1991 (Cth), s 94(1)(a).

   [3]           Social Security Act 1991 (Cth), s 94(1)(b).

   [4]           Social Security Act 1991 (Cth), s 94(1)(c).

3. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

   
   

   The Determination also sets out the manner in which impairments are to be assessed.

   
   

   In particular, an impairment rating may only be assigned if the person’s condition is “permanent”.[5] Subsection 6(4) of the Determination provides that a condition is “permanent” if it is fully diagnosed, fully treated and fully stabilised by an appropriately qualified medical practitioner, and, if it is more likely than not, in light of available evidence, to persist for more than two years.[6] 

   [5]           Subsection 6(3)(a) of the Determination.

   [6]           Subsection 6(4)(a)-(d).

4. In determining whether a condition has been “fully diagnosed”, there must be corroborating evidence of the condition or impairment.  In determining whether it has been “fully treated”, consideration must be given to any treatment or rehabilitation that has been undertaken, and whether that treatment is continuing or is planned in the next two years.[7] The condition or impairment is regarded as “fully stabilised” if the person has undertaken reasonable treatment and, in the professional opinion of an appropriately qualified medical practitioner, any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.[8] 

   [7]           Subsection 6(5).

   [8]           Subsection 6(6).

5. Mrs Collins’ conditions are lateral epicondylitis, plantar fasciitis, vitamin D deficiency, fibromyalgia, osteoarthritis and depression. In relation to the conditions of fibromyalgia, osteoarthritis, epicondylitis and plantar fasciitis, the Secretary concedes that they were fully diagnosed, treated and stabilised at the time of claim. What remains to be determined, on the Secretary’s case, is whether during the relevant period those impairments warranted an impairment rating of 20 points or more under the Impairment Tables and, if so, whether Mrs Collins had a continuing inability to work. In relation to the condition of vitamin D deficiency, the Secretary concedes it was fully diagnosed and treated but was not fully stabilised at the time of claim. In relation to the condition of depression, the Secretary contends that it was not fully diagnosed, treated and stabilised during the relevant period.

6. I am satisfied that the applicant has a number of impairments (which are referred to in [5], above) thereby satisfying s 94(1)(a).

   CONSIDERATION

7. Dr Young, a rheumatologist, in her report of 12 August 2014, has listed a number of conditions that are generally well managed and that cause minimal or limited impact on the ability of the applicant to function. These conditions include lateral epicondylitis and plantar fasciitis. I therefore conclude that they are not capable of being assigned an impairment rating greater than 0 points at the time of claim or in the 13-week period thereafter.

8. Dr Young considered that the applicant’s vitamin D deficiency was generally well managed and caused minimal or limited impact on her ability to function. There is, however, evidence before me that indicates the condition cannot be regarded as being fully stabilised. Dr Anderson, general practitioner, in his report of 24 March 2014, assessed most of Mrs Collins’ conditions globally. In doing so, he opined that the impact of the conditions, including the vitamin D deficiency, on her ability to function was expected to persist for 13-24 months and significantly improve. That being the case, I am not satisfied that her condition has been fully stabilised and can be regarded as “permanent”.

9. I consider the fibromyalgia condition. The applicant informed the Social Security Appeals Tribunal that she was unable to walk very far but was still able to drive and she drives herself to the shops. She also stated that she was able to do a little bit of housework but other days she just had to rest. The applicant also informed the occupational therapist on 18 September 2014 that she had “generalised pain, difficulty lifting/carrying, sleep disturbance, difficulty mopping and writing” and that she could walk for 20-30 minutes. The applicant also stated that she was “cleaning the house daily at her own pace and she noted being unable to garden”. Dr Young, in her report of 12 August 2014, has stated that the applicant had “generalised chronic pain” as well as “difficulty with exercise tolerance, difficulty walking long distances and standing long periods”.

10. In considering the fibromyalgia condition, I am satisfied that Table 1 is the most appropriate Table to apply. This is because the Introduction to the Table states that “it is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina”.

11. I have considered whether it is fair to regard the fibromyalgia condition as being a “permanent condition” within the meaning of s 6(4) of the Determination. Dr Anderson, in his report of 24 March 2014, has assessed the applicant’s fibromyalgia condition (along with other conditions) and reported that it was likely to “significantly improve” within the next two years. His opinion has been informed by specialist advice that indicated an “expectation of improvement over time”. As the applicant has been a patient of the practice of Dr Anderson since 2001, I give weight to this assessment. It indicates that the fibromyalgia condition has not fully stabilised and therefore an impairment rating could not be assigned to the condition. This appears to be supported by the report of Dr Young which states that the applicant’s condition would “fluctuate”.

12. In considering the osteoarthritis condition of the applicant, I consider that the applicant satisfies the descriptors for a 5 point rating under Table 2. The applicant has pain in her knees and back and she cannot stand for long periods. While she has difficulty walking, she can walk for 20-30 minutes and is slow to climb stairs. The applicant is able to clean her home at her own pace. Dr Young has stated that the applicant has difficulty in walking long distances.

13. I have also considered the depression condition of the applicant. The Determination provides that any condition of depression must be diagnosed by a clinical psychologist, if that condition is not confirmed by a psychiatrist. Dr Anderson, in his report of 24 March 2014, did not indicate that the applicant had a depression condition but reported that the applicant was then “grieving after recent unexpected death of [her] husband”. Dr Anderson, in his later report of 20 October 2014, indicated that the condition of “? Depression [sic]” had to be referred for future assessment. He noted that the condition was generally well managed and caused minimal or limited impact on her ability to function. Again, in view of the fact that the applicant had been a patient of the practice of Dr Anderson since 2001, I give significant weight to this assessment of the functional capacity of the applicant during the relevant period.

14. There is also a report of Ms Cole, a clinical psychologist, who on 11 July 2015 diagnosed the applicant with major depressive disorder. She first saw the applicant on 1 May 2015. That report does not give any reasons for her conclusion and her report does not indicate the condition of the applicant during the relevant period. I do not consider that I can assign an impairment rating to the depression condition as there is no evidence that the condition has been diagnosed by a clinical psychologist or by a psychiatrist as being in existence during the relevant 13-week period. Even if it was possible to assign an impairment rating to the depression condition, I would assign zero points because Dr Anderson had indicated, after the relevant period, that the condition was generally well managed and caused minimal or limited impact on the ability of the applicant to function. I find that the applicant does not satisfy s 94(1)(b) by not having impairments which can be assigned an impairment rating of 20 points or more under the Impairment Tables.

15. It is not necessary for me to consider the continuing inability to work criteria in s 94(1)(c) of the Act. However, I should state that the report of the occupational therapist is a comprehensive assessment of the applicant. In that assessment, it was concluded that the applicant’s personal factors have a low impact on her ability to work, obtain work or look for work. Furthermore, the evidence before me indicates that the applicant was not enrolled in a program of support in the 18-month period before she lodged her claim for disability support pension.

16. While the applicant claims to have back pain, which may be part of her osteoarthritis condition, there is insufficient evidence before me of the spinal condition being investigated to enable me to assign a rating under Table 4.

    CONCLUSION

17. The applicant is not eligible for disability support pension.

18. During the hearing, which was conducted by telephone, the applicant indicated that she had some medical certificates that she would like the Tribunal to consider. Subsequently, the applicant submitted to the Tribunal two certificates that were admitted into evidence without objection by the respondent.[9] I have taken these certificates into consideration but I am of the view that they refer to the present situation of the applicant and do not refer to her conditions during the relevant period.  

    [9]           Exhibit B.

    DECISION

19. I affirm the decision under review.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

................................[Sgd]........................................

Associate

Dated 10 December 2015

Date of hearing	2 October 2015
Date final submissions received	23 October 2015
Applicant	In person
Solicitors for the Respondent	Ms D Smith, Program Litigation and Review Branch, Department of Human Services