Cruickshank and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 575
•16 August 2013
[2013] AATA 575
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0386
Re
Lorraine Cruickshank
APPLICANT
And
Secretary, Department Of Families, Housing, Community Services And Indigenous Affairs
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 16 August 2013 Place Brisbane The Tribunal affirms the decision under review.
......................[Sgd]..................................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Physical, intellectual or psychiatric impairment – Impairment rating of 20 points or more required – More than one loss of function – Impairment Tables – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 26, 94
Social Security (Administration) Act 1999 (Cth) Sch 2
CASES
Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
16 August 2013
INTRODUCTION
I have to determine whether Ms Lorraine Cruikshank (“the applicant”) is entitled to disability support pension (“DSP”). In making a decision about the eligibility for that benefit, I have to examine whether she had medical conditions which impaired her ability to work at the date of her claim or within a period of 13 weeks following the date of her claim.
PRIOR DECISIONS
On 4 July 2012, the applicant made a claim for DSP. On 19 July 2012, Centrelink made a decision to reject her claim for DSP. On 27 September 2012, this decision was affirmed upon internal review by an authorised review officer.
On 3 December 2012, the Social Security Appeals Tribunal affirmed the decision of Centrelink that the applicant was not entitled to DSP.
On 22 January 2013, the applicant made an application to this Tribunal for review of the decision of the Social Security Appeals Tribunal.
ELIGIBITY CRITERIA
The entitlement to DSP is conferred by s 94 of the Social Security Act 1991 (Cth) (“the Act”).
A person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment;[1] and the person’s impairment is of 20 points or more under the Impairment Tables;[2] and the person has a continuing inability to work.[3] All of these requirements must be satisfied before a person is entitled to DSP.
[1] Social Security Act 1991 (Cth) s 94(1)(a).
[2] Social Security Act 1991 (Cth) s 94(1)(b).
[3] Social Security Act 1991 (Cth) s 94(1)(c).
In considering whether the applicant had a “continuing inability to work”, I must have regard to the definition in s 94(2) of the Act. That definition requires a claimant to have an impairment which is, of itself, sufficient to prevent a person from doing any work or training within the next two years. In deciding whether a claimant has a continuing inability to work the Secretary cannot have regard to the factors in s 94(3) of the Act. These being, the availability to the person of training or work in the person's area. The term “work” is defined to be work of at least 15 hours per week, with the wage being at least the relevant minimum wage, and in Australia even if that work is not locally accessible.[4]
[4] Social Security Act 1991 (Cth) s 94(5).
There are other provisions in s 94 of the Act that the applicant satisfies. She is over the age of 16 years,[5] and is an Australian resident.[6]
[5] Social Security Act 1991 (Cth) s 94(1)(d).
[6] Social Security Act 1991 (Cth) s 94(1)(e)(i).
IMPAIRMENT TABLES
I am required to apply the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[7] The Determination contains the Impairment Tables (“the Tables”) as well as the rules for their application. The Tables are function based and are designed to assign ratings to determine the level of functional impact of impairments. The Determination provides that the Impairment Tables may only be applied after the person’s medical history has been considered.[8] An impairment rating can only be assigned if a condition is permanent, i.e. fully diagnosed by an appropriate medical practitioner, fully treated and fully stabilised, and the resulting impairment is likely to persist for more than 2 years.[9]
[7] Social Security Act 1991 (Cth) s 26.
[8] s 6(2) of the Determination.
[9] subs 6(3)–(8) of the Determination.
Prior to the commencement of the Determination, the Impairment Tables that were in force were contained in Sch 1B of the Act. Those Impairment Tables contained a direction that where there is more than one loss of function, the separate ratings should be added together to obtain a combined work-related impairment rating.[10] The Determination does not contain any such corresponding provision. As the applicant has made claims for a number of impairments, I clarified with the respondent whether the combined impairment ratings of the applicant could be added together to obtain a combined work-related rating. It was accepted that it could be inferred from various provisions in the Determination[11] that the previous practice of adding the impairment ratings together to obtain a combined work-related rating would continue.
[10] Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066 at [54] per DP Forgie.
[11] See, e.g. s 10(6) of the Determination.
TIME FOR DETERMINING ELIGIBILITY
At the hearing of this application, I informed the applicant that to be qualified to receive DSP, she must have met the eligibility criteria on 4 July 2012, which is when she made her claim, or within 13 weeks of that date.[12] In considering this application I am confined to considering the eligibility of the applicant in this 13 week period which ended on 3 October 2012 (“the relevant period”).
[12] Social Security (Administration) Act 1999 (Cth) Sch 2, cl 4.
TREATING DOCTOR’S REPORT
Centrelink was provided with a medical report by Dr Sushma Naik, the applicant’s treating doctor, dated 21 June 2012.[13]
[13] Exhibit 1, T-document 15, pp. 94-101.
Dr Naik reported that the condition with the most impact was breast cancer, the date of onset being June 2008. Dr Naik indicated that the current symptoms included myalgia, arthralgia, headaches, weakness and severe back pain. Dr Naik described the condition’s impact on the applicant’s ability to function as “unable to stand / move / sit for longer than 30 minutes”.
Dr Naik provided a diagnosis of “Dense Cataract – Both Eyes” with decreased visual acuity, halos, and eye watering and irritation. He mentioned that the applicant had been referred to a hospital and was on the waiting list to be seen.
In his report Dr Naik also mentions a number of conditions under the heading of “medical conditions that are generally well managed and that cause minimal or limited impact on ability to function”. These conditions are hypercholesterolemia, ‘teeth fallen’, osteoarthritis and depression.
Dr Naik provided a second medical report.[14] This report is undated but may have been made in November 2012. While this report was not provided within the relevant period it does show that the applicant’s osteoarthritis condition was then the condition with the most impact on her ability to function, rather than her breast cancer condition. In the second medical report the treating doctor has listed a number of conditions under the heading of “…medical conditions that are generally well managed and that cause minimal or limited impact on ability to function” (these conditions being depression, cataract of both eyes, ‘teeth fallen’ and hypercholesterolemia).
[14] Exhibit 1, T-document 25, pp. 169-179.
On 18 May 2013, Dr Naik completed a report for a public housing authority to support the case of the applicant having a flat at ground level.[15] That report, then confirmed, that the osteoarthritis condition of the applicant was causing difficulty with her climbing stairs. The report was provided to Centrelink on 23 May 2013.
[15] Exhibit 2.
PSYCHOLOGIST REPORT
In a report dated 15 August 2012,[16] Ms Vivien King, a clinical psychologist, reported that the “provisional diagnosis that I consider to be most appropriate at this time is Depressive Disorder Not Otherwise Specified. Further assessment is ongoing”.
[16] Exhibit 1, T-document 20, pp. 143-144.
MEDICAL SPECIALIST REPORTS
Dr Ravi Rawlley, a consultant psychiatrist, has provided two reports. In one report dated 14 March 2013,[17] Dr Rawlley reported that the applicant “continues to function despite a lot [of] psychosocial stressors and physical illnesses”. In his report of 23 May 2013,[18] Dr Rawlley reports that the applicant has “Mixed Anxiety and Depressive Disorder” which was diagnosed in February 2013.
[17] Exhibit 5.
[18] Exhibit 4.
JOB CAPACITY ASSESSMENT REPORT
On 10 July 2012, a Job Capacity Assessment Report was completed by a registered psychologist.[19] In that report, several medical conditions of the applicant were considered. In regards to her condition of breast cancer which was in remission, the assessor gave that condition an impairment rating of 10 points. This assessment was made on the basis of information given by the applicant, upon which the assessor concluded that there was a moderate functional impact on activities requiring physical exertion or stamina. The applicant informed the assessor that she was able to use public transport and walk around a shopping centre or supermarket; and would be able to perform tasks not requiring a high level of physical exertion. The assessor considered that most conditions had not been fully treated and stabilised. The applicant was assessed as having a baseline work capacity of 15-22 hours per week, and within the next two years of having a work capacity of 15-22 hours per week with intervention.
[19] Exhibit A, T-document 18, pp. 134-140.
CONSIDERATION
I am satisfied that the applicant has physical, intellectual or psychiatric impairments in terms of s 94(1)(a) of the Act. The respondent has quite properly conceded that the applicant has the following impairments; breast cancer (remission), depression/anxiety, cataracts, osteoarthritis of both knees and high cholesterol. I am satisfied that these impairments were in existence in the relevant period. I am next required to consider whether the impairments of the applicant are such that they can be assigned a total impairment rating of 20 points or more under the Impairment Tables.[20]
[20] Social Security Act 1991 (Cth) s 94(1)(b).
On the state of the evidence before me I consider that the only condition of the applicant that can be assigned an impairment rating is her breast cancer condition which is in remission. This condition is fully diagnosed, treated and stabilised and likely to persist for more than 2 years. I consider that the appropriate Table to apply is Table 1 – Functions requiring Physical Exertion and Stamina and that the information which has been provided by the applicant best fits with the descriptors which attract a rating of 10 points under the table. The descriptors for the rating of 10 points in Table 1 require that the applicant:
…
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).[21]
[21] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 Pt 3, Table 1.
The applicant advised the authorised review officer that:
- She has her own car and drives.
- Whether she drives to a Coles supermarket or walks to a BiLo supermarket ‘over the back’ depends on the day and how she feels.
- She usually drives to a Coles supermarket, gets what she needs, puts it in the car and drives home. She has to do it all slowly.
- The other day she walked to the BiLo supermarket and only needed bread, milk and maybe one other thing and by the time she got half way home it ‘nearly killed her’. She had to stop walking, have a rest and then continue.
- There is a train near Warren Park. She doesn’t take it. Whether she could or not would depend on the weather as when it is cold or rainy her knees get worse.
- At home she usually has to cook and clean and change the bed. She gets her daughter to help turn the mattress, but she can put the sheets on the bed – it just takes more time than it used to.[22]
[22] Exhibit 1, T-Document 22, p. 155.
Dr Naik, the treating doctor, considered that the depressive condition of the applicant was one of the conditions that were generally well managed and that cause minimal or limited impact on her ability to function. I am unable to give the depressive condition a rating for the relevant period. The introduction to Table 5 (Mental Health Function) of the Impairment Tables provides that a diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner, which includes a psychiatrist. In this case where during the relevant period the diagnosis is not made by a psychiatrist, the diagnosis must be supported by evidence from a clinical psychologist. While the treating doctor, has in his report of 21 June 2012 remarked that the applicant then had the condition of depression. The clinical psychologist was not prepared to confirm a diagnosis of the depressive condition. The clinical psychologist was only prepared to make a provisional diagnosis. She also stated that further assessment of her condition was ongoing. As a diagnosis of a mental health condition has to be confirmed by a psychiatrist or clinical psychologist, the condition cannot attract a rating under Table 5. Another reason why the condition could not be assigned a rating is because the condition was not fully treated or stabilised. The clinical psychologist opined that the treatment was likely to require in excess of 20 sessions. The applicant stated that prior to the relevant period she had taken some prescription medication for her depressive condition. However, this medication was not referred to by the treating doctor in his report. The treating doctor stated that the only treatment provided was counselling. The prescription medication was also not referred to in the pharmacy records, which were admitted into evidence, as being purchased by the applicant before or during the relevant period.[23]
[23] Exhibit 7.
After reviewing the evidence before me I have concluded that the osteoarthritis condition of the applicant cannot be rated under the Impairment Tables. One reason is that the condition does not appear to have been stabilised during the relevant period. In his first report Dr Naik listed the osteoarthritis condition as one of the “...medical conditions that are generally well managed and that cause minimal or limited impact on ability to function”.[24] The condition was then said to be being treated with physiotherapy. In the second report Dr Naik stated that the symptoms of the osteoarthritis condition were the applicant was “unable to walk and even stand for 10 minutes. Unable to sit for more than 1 hour due to pain in the neck and upper back. Pain in small joints of the finger”.[25]
[24] Exhibit 1, T-Document 15, p. 99.
[25] Exhibit 1, T-Document 25, p. 170.
On 27 September 2013, the applicant informed the authorised review officer that she ceased going to the physiotherapist for treatment and that her doctor wanted to have x-rays done of her knees. She then stated that the “doctor will have to see results of x-rays before knowing what further treatment to have”.[26] On 23 November 2012, Dr Naik reported that the applicant “may need a referral to the orthopaedic surgeon for consideration for knee replacement”.[27] There is no suggestion that knee replacement surgery is not reasonable treatment. There is also no indication that an orthopaedic surgeon has investigated the osteoarthritis condition. In the circumstances I cannot regard the condition as being fully treated or stabilised. I appreciate that the applicant does not wish to have knee replacement surgery. However, I am not satisfied on the state of the evidence before me that there is a medical or other compelling reason for the person not to undergo reasonable treatment in terms of s 6(6)(b)(ii) of the Determination.
[26] Exhibit 1, T-Document 22, p. 153.
[27] Exhibit 1, T-Document 24, p. 168.
Dr Naik has, in his first report, diagnosed the applicant as having “Dense Cataract – Both Eyes” and mentioned that the applicant had been referred to a hospital for treatment. In his second report he states that the cataract condition is generally well managed and causes minimal or limited impact on her ability to function. Dr Naik also mentions that the applicant was due for surgery and that he expected significant improvement of the condition. In the circumstances, I consider that the cataract condition cannot be assigned a rating under the Impairment Tables as the condition was not fully treated or stabilised within the relevant period.
Dr Naik, the treating doctor, has reported that the conditions of hypercholesterolemia and ‘teeth fallen’ are generally well managed, causing minimal or limited impact on the applicant’s ability to function. Having regard to this advice I cannot assign each condition a rating in excess of 0 under the Impairment Tables which measures functional deficiencies. However, the applicant advised that she has received some limited treatment of her teeth but requires more treatment. In the circumstances, I recommended during the hearing that the applicant be assigned a social worker so that she can be advised of any community support for such treatment. I stated that where a person is receiving treatment for a cancer condition she may be able to avail herself of support for further treatment.
Having reviewed the evidence I find that the applicant does not satisfy s 94(1)(b) of the Act and so does not qualify for DSP.
CONTINUING INABILITY TO WORK
I have concluded that the applicant cannot be assigned 20 points for her impairments, either alone or in combination. It is therefore not strictly necessary for me to determine whether she has a continuing inability to work in terms of s 94(2) of the Act. To qualify for DSP the applicant is required to satisfy the legislative criteria in that provision which was in force during the relevant period. I am unable to make a finding that the applicant has a continuing inability to work in terms of s 94(2) of the Act. In order for the Secretary to conclude that a person has an inability to work because of an impairment, it is also essential that the criteria in both subparas 94(2)(a) and (b) be met. This is indicated by the presence of the distributive word “and” in s 94(2).
In considering the application of s 94(2)(a), which refers to work, I am required to refer to the definition of “work” in s 94(5) of the Act which refers to work for at least 15 hours per week. The Job Capacity Assessment Report, in which the baseline capacity for work of the applicant was assessed to be 15-22 hours per week, was not challenged by applicant. I accept that the report was a fair assessment of the capacity of the applicant because she has given evidence of her participation in work experience. This report is unchallenged evidence and I rely upon the report to find that during the relevant period the applicant had a current baseline capacity for work of at least 15 hours per week and therefore cannot satisfy s 94(2)(a) of the Act. The report was based upon the statement of the applicant that she prefers to work on a part-time basis and wants to be independent of Centrelink benefits.
There is no evidence that the impairments of the applicant are of themselves sufficient to prevent her from undertaking educational, vocational training or on-the-job training during the next two years in terms of s 94(2)(b)(i) of the Act. Some assistance should be provided to the applicant, who has experience in retailing and as a teacher’s aide to identify any suitable training programmes. The applicant has identified that she needs to have computer skills and any training program should meet that need.
Having regard to all of the evidence before me, I have come to the conclusion that the applicant is not entitled to DSP. The applicant has been properly advised that she can make another claim for DSP to consider her condition as at a later date.
DECISION
I affirm the decision under review
I certify that the preceding 34 (thirty –four) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member ....................[Sgd]....................................................
Associate
Dated 16 August 2013
Date of hearing 25 July 2013 Applicant In person Advocate for the Respondent Joe Guthrie
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