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

[2018] AATA 1502

Cumming and Secretary, Department of Social Services (Social services second review) [2018] AATA 1502 (31 May 2018)

Division:GENERAL DIVISION

File Number(s):      2016/6719

Re:Sharon Cumming

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:31 May 2018

Place:Perth

The decision of the AAT1 dated 24 November 2016 is affirmed

........................................................................

Member C Edwardes

CATCHWORDS

SOCIAL SECURITY – disability support pension cancelled – whether applicant had conditions that were fully diagnosed, fully treated and fully stabilised – whether applicant had 20 impairment points - whether applicant had severe impairment – spinal condition – mental health condition -  diabetes – morbid obesity – carpel tunnel syndrome – shoulder condition – hip pain – varicose veins - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) – ss 4(2), ss 94(1) s 94(2), ss 94(3B),

Social Security (Administration) Act 1999(Cth) – s 80(1) s 118(13)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – Tables 4, 5

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179

Harris v Secretary, Department of Employment and Workplace relations [2007] FCA 404

SECONDARY MATERIALS

The Guide to Social Security Law

REASONS FOR DECISION  

Member C Edwardes

31 May 2018

THE APPLICATION

1. On 1 June 2016 the Applicant’s Disability Support Pension (DSP) was cancelled pursuant to section 80 of the Social Security (Administration) Act 1999 (the Administration Act).

2. The Tribunal has jurisdiction to hear this matter pursuant to section 179 of the Administration Act.

   RELEVANT LEGISLATION  

3. The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Administration Act.

   Relevant date

4. The decision to cancel the Applicant’s DSP was made under s 80 of the Administration Act. Section 80 of the Administration Act states:

   (1)  If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

   (a)who is not, or was not, qualified for the payment; or

   (b)to whom the payment is not, or was not, payable;

   the Secretary is to determine that the payment is to be cancelled or suspended.

5. The Tribunal notes that the decision to cancel the Applicant’s DSP was an adverse determination within the meaning of subsection 118(13) of the Administration Act, which provides that it ordinarily takes effect on the day on which it made. The Tribunal considers that review of this decision to cancel a social security payment requires consideration of whether the person is qualified for a DSP at the date of cancellation, not at any other time. Due to the temporal element involved, the Tribunal finds it is irrelevant that a person may satisfy the qualification criteria on a subsequent day (Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 [143])

   Provisions relevant to the Applicant’s continuing eligibility for DSP

6. Section 63 of the Administration Act allows the Secretary to require a person to undergo a medical assessment or complete a questionnaire if the person is in receipt of payments, including DSP.

   Assessing impairments and assigning an impairment rating

7. Provisions pertaining to qualification for the disability support pension are found in s 94 of the Act:

   (1)  A person is qualified for disability support pension if:

   (c)the person has a physical, intellectual or psychiatric impairment; and

   (d)the person's impairment is of 20 points or more under the Impairment Tables; and

   (e)one of the following applies:

   (i)     the person has a continuing inability to work;

   (ii)    …

8. The Tribunal notes that Applicant’s qualification for DSP must be assessed in accordance with the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables are located in the Determination).  This instrument was in force on 30 March 2016 when the Applicant was required to provide medical information in order to review her continuing eligibility for DSP.

9. Subsection 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Applicant are worth 20 points under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AAT 399 Senior Member Isenberg explained the operation of the Impairment Tables as follows:

   [5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

   [6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

   Subsections 6(5), 6(6) and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent.  Subsection 8(1) of the Determination stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence. 

10. Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using impairment tables and assign impairment ratings. In particular, subsection 11(1) states that if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. 

    Continuing inability to work

11. As set above in section 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to section 94(2) of the Act:

    (2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)  in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)  in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)  in all cases--either:

    (i)  the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)  if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

    (emphasis added)

12. ‘Severe impairment’ is defined in subsection 94(3B) of the Act:

    A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

13. Subsection 94(3C) of the Act states that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of subsection 94(3C).

14. Relevantly, subsections 7(1) and 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require generally, that a person is to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP.

15. The Tribunal is also assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179).

    BACKGROUND

16. The Applicant had been receiving DSP since 4 June 2010.

17. The Applicant’s DSP was cancelled on 1 June 2016 as it was found as the reviewer found the Applicant did not have an impairment rating of 20 points or more. (T59 330) (R1)

18. On the 24 August 2016 a review was undertaken by an Authorised Review Officer (ARO) (T63 335-341)(R1) The review affirmed the Department’s original decision.

19. The Applicant applied for a review of the ARO decision on 12 July 2016.

20. In a decision dated 24 November 2016, the Administrative Appeals Tribunal (AAT1) affirmed the ARO’s decision dated 12 July 2016.    

21. The AAT1 determined:

    ·The Applicant’s condition of chronic back pain was assessed at 10 impairment points under Table 4 – Spinal Function.

    ·The Applicant’s psychological conditions did not generate any impairment points as they were not considered fully diagnosed, fully treated or fully stabilised.

    ·The Applicant’s conditions of carpal tunnel syndrome was not accepted as being fully diagnosed, treated or stabilised and therefore could not be assigned an impairment rating.  

    ·The Applicant’s condition of diabetes had no significant functional impact and did not generate any impairment points.

    ·The Applicant’s total impairment rating was 10 points.

    ·The Applicant did not have an impairment rating of 20 points or more.      (T2 3-13) (R1)

22. On 13 December 2016, the Applicant applied to the General Division of the Tribunal for a further review of the decision.

23. The matter was heard in Perth on April 13 2018 the Applicant attended in person by phone and Ms Jones-Bolla from Sparke Helmore Lawyers appeared on behalf of the Respondent.

    EVIDENCE

24. The matter was heard in Perth on 13 April 2018. The Applicant appeared in person by phone and the Respondent was represented by Ms Jones-Bolla of Sparke Helmore Lawyers.

25. The Tribunal received the following evidence:

    ·Exhibit A1 letter of Elisa Mladenovic dated 20 December 2017.

    ·Exhibit A2 letter of Sharon Cumming received 20 December 2017.

    ·Exhibit A3 report of Dr Narelle Vujcich dated 20 December 2017.

    ·Exhibit A4 letter from Roslind Witham, Explorability Inc. dated 6 July 2017.

    ·Exhibit A5 letter of Sharon Cumming received 28 June 2017.

    ·Exhibit A6 letter of Natasha Cowan received 28 June 2017.

    ·Exhibit A7 letter of Lesley E Kerr received 28 June 2017.

    ·Exhibit A8 letter of Karina Rumens, Ashburton P&C Assoc.  

    ·Exhibit A9 letter of Nicole Pountney dated 28 June 2017.

    ·Exhibit A10 report of Alexis Yee, Maddington Physiotherapy dated 16 March 2013.

    ·Exhibit A11 letter of Dr Siva Shankar Damodaran and accompanying clinical reports dated 28 June 2017.

    ·Exhibit A12 letter of Dr Siva Shankar Damodaran and accompanying clinical report dated 15 February 2017.

    ·Exhibit R1 T documents Secretary’s Statement of Facts Issues and Contentions (SOFIC)

    ·Exhibit R2 Secretary’s List of Authorities

    ·Exhibit R3 Attachment A - additional evidence pages 1-33

    ·Exhibit R4 Attachment B - HPA Unit Report by Dr Sandra Armstrong received 28 September 2017.

    ·Exhibit R5 Attachment B – Addendum to report by Dr Sandra Armstrong.

26. The Tribunal reserved its decision on 13 April 2018.  However on 2 May 2018, the Tribunal received further evidence from the Applicant.  On 3 May 2018, the Respondent filed a Supplementary Statement of Contentions. The Tribunal has marked the additional documents as exhibits A13 and R6.

27. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address it, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be referred to below. The Tribunal notes and has considered this material (Exhibits A13 and R6).

    Applicant’s mental health

28. The Tribunal notes the Secretary’s contentions in relation to the Applicant’s mental health.

    41. The Secretary accepts that the applicant's mental health condition was fully diagnosed, treated and stabilised at the date of cancellation on the basis of the following evidence:

    (a)Elisa Mladenovic (psychologist) wrote on 21 July 2016 that she had been seeing the applicant "since May 2016". She wrote that the applicant's "high anxiety" confined her to her house. She believed that the applicant "require[d] some extended period of time to work out her physical and emotional concerns before she is ready for work." (T62, p 334)

    (b)Dr Granston's report dated 25 November 2016 discussed the symptoms of "chronic depressed and anxious mood and associated panic/agoraphobia". Dr Granston considered that "it [was] not foreseeable [the applicant's] condition will drastically improve for a considerable time." (T64, p 349)

    42. The Secretary contends that the appropriate impairment rating for this condition is 10 points under Table 5 for a moderate functional impact. This is on the basis that all of the indicators are satisfied at this level, being more than the requisite four, and the Secretary relies on the reports of Ors Granston and Armstrong in this regard.

    43. The Secretary further contends that the medical evidence does not support the assignment of 20 points for a severe functional impact at the relevant date. While the Secretary agrees that the indicator for "social/recreational activities and travel" is met at the severe level, the severe descriptor is not satisfied as it requires that most, being four out of six, of the indicators be met. There is no evidence from the applicant's treating specialists that this was the case at the date of cancellation”.

29. The Tribunal accepts the Applicant has had mental health issues over a significant period of time. The Tribunal particularly notes Dr Armstrong’s reports.  The Tribunal considers that Dr Armstrong’s reports are a culmination multiple medical reports assessments and discussions with the Applicant’s primary medical carers, and therefore a heavy weight is placed upon the veracity of such evidence.  Dr Armstrong states:

    Antidepressant  medication  is  usually  recommended  where anxiety  and  depression  are  more  severe and/or there has been a limited response to psychotherapy. The medical evidence states that she has previously been  prescribed  Aropax,  Mirtazapine  and  Effexor.  However  it  would  seem  that Ms Cumming's compliance with antidepressants has been less than optimal, and the medical evidence  is somewhat  inconsistent   regarding  which  medication  was  prescribed,  at  what  time  it  was  prescribed and whether  she was compliant  with  medication  use.  In the   AAT1 hearing she stated that she had ceased  medication  in 2013.  Dr Damodoran's reports indicate that Ms Cumming was  prescribed medication, although in our 22/2/17 phone conversation he seemed to be aware that she had ceased antidepressants in 2013. A 19/1/17 letter from Dr Damodoran states that she is "allergic to most medications". I consider that Ms Cumming would benefit from a review of her medication history by a psychiatrist,   as  it  is somewhat  unusual  to  be  intolerant  of  all  antidepressant  medications.

    Nevertheless I consider that it is reasonable to rate her psychiatric conditions, as fully diagnosed treated and stabilised, as of the date of cancellation, given her long history and the number of her presentations  to  mental  health  services, etc

    …  

    There seems to be some difference of opinion between Dr Granston and Ms Mladenovic, as to whether Ms Cumming's psychiatric conditions can be rated as permanent or not. Dr Granston told me that she did not think that her conditions were permanent and she could improve over 12-24 months. However Ms Mladenovic considered that Ms Cumming would have longer term issues, although she may improve to some degree within the 2 years from the date of cancellation. However Dr Granston saw  Ms Cumming  on 2  occasions only,  for the  purpose  of  assessment,  whereas Ms Mladenovic  has  been her treating psychologist, so Ms Mladenovic's opinion may be more appropriate. I therefore consider that her psychiatric conditions can be rated as permanent, as they are long standing and these conditions tend to be chronic in nature

30. The Tribunal accepts on the basis of the assessment by Dr Armstrong that this condition is fully diagnosed, fully stabilised and fully treated. 

    Applicant’s spinal condition

31. The Tribunal accepts that the Applicant’s spinal condition started from a work injury sustained in 2006 and has resulted in a range of treatments including a laminectomy and discectomy.  The Tribunal observes that the Applicant suffers from chronic pain, and has been subject to a range of treatments in the past.

32. The Tribunal notes and agrees with the Secretary’s contentions that her spinal condition was fully diagnosed, treated and stabilised on 1 June 2016.

    Applicant’s spinal condition

33. The Tribunal notes and accepts the Secretary’s contentions in relation to the Applicant’s condition of diabetes:  

    49. Dr Damodaran, in his reports of 19 January 2017 and 12 June 2017, wrote that there was a diagnosis of "diabetes mellitus" and that the condition is treated with diet rather than medication (Attachment A, p 1, p 10).

    50. The applicant gave evidence to the AAT1 that she tests her blood sugar "every few days" and it is "normally in the safe range" (T2, p 11 at [48)).

    51. In the absence of medical evidence that the condition causes a functional impact, eg, to stamina or functions of consciousness, the Secretary contends that there is no impairment to which an impairment rating may be assigned: s 6(8) of the Rules” (A11)

    (emphasis added)

    Applicant’s condition of morbid obesity

34. The Tribunal notes and accepts the Secretary’s contentions in relation to the Applicant’s condition of morbid obesity:

    52.  Dr Damodaran states in his report of 12 June 2017 that the applicant's "morbid obesity" causes "constant back and shoulder pains and breast pain", that she is "awaiting referral  for surgeon for breast reduction" and "has declined [bariatric surgery] due to bad experiences suffered from her friends and to her anxiety" (Attachment A, p 9).

    53. The Secretary accepts that the condition was fully diagnosed at the relevant date, but contends it was not fully treated and stabilised due to insufficient evidence regarding the treatment and prognosis of the condition, in particular:

    (a)whether the applicant's treating doctors have recommended treatment or lifestyle changes;

    (b)whether the applicant has complied with recommendations; and

    (c)whether treatment, or continued treatment, was expected to result in functional improvement within two years”

    Applicant’s carpal tunnel condition

35. The Tribunal notes the Secretary’s contention that:

    54. The applicant reported to the AAT1 that she had had surgery for carpal tunnel syndrome "about ten years ago" and "made a good recovery". The symptoms had recently returned and she had yet to seek treatment (T2, p 1O at [45)).

    55. Dr Damodaran stated in his 12 June 2017 report that the symptoms "ha[d] been ongoing since 2003" and a "median neuropathy" has been diagnosed from an "EMG". However, Dr Damodaran does not provide evidence about:

    (a)when the electromyography occurred;

    (b)the functional impact caused by the condition; and

    (c)the treatment and prognosis of the condition.

    56. In the absence of evidence of diagnosis, treatment and prognosis referable to the qualification day, the Secretary contends that the condition was not fully diagnosed, treated and stabilised.

    57. Even if the condition were found to be fully diagnosed, treated and stabilised at the relevant date, the applicant did not suffer a functional impact consistent with the mild descriptor in Table 2. In particular, the applicant reported to the JCA that she could carry a 5 kg shopping bag (T58, p 326) and there is no evidence that she had difficulty handling small objects such as coins or doing up buttons”

1. The Tribunal finds that the Applicant’s carpal tunnel condition was diagnosed in 2003. The Tribunal notes that the Applicant underwent surgery and (T2 7) (R1) recovered well, however, as the Applicant’s has stated during the hearing, her symptoms later resurfaced.

2. The Tribunal notes that the Applicant has not sought medical assistance for her carpal tunnel condition. The Tribunal therefore finds that the Applicant’s carpal tunnel condition is not fully diagnosed, fully stabilised or fully treated.

   Applicant’s shoulder condition

3. The Tribunal notes the Secretary’s contentions in relation to the Applicant’s shoulder condition:

   58. The Secretary accepts, from the radiological evidence and Dr Damadaran's report of 12 June 2017 (Attachment A, pp 9, 22) that the applicant's shoulder condition was fully diagnosed at the date of cancellation.

   59. However, the Secretary contends that the evidence does not establish that the condition was fully treated and stabilised. While Dr Damodaran wrote that the applicant had not responded to "several intralesional (sic) steroid injection", there is no evidence of other reasonable treatment, including physiotherapy as discussed by Dr Armstrong (Attachment C).

   60. Even if the condition is found to be fully treated and stabilised, the Secretary contends there is no medical evidence of functional impact at the relevant date (see [57] above)”.

4. The Tribunal additionally notes Dr Armstrong’s reports stating:

   2003 medical reports indicate that Ms Cumming had right shoulder pain, which was thought to be due to rotator cuff pathology.  Physiotherapy was of little benefit and a steroid injection was of some benefit. A 19/1/17 (sic) [more than 6 months after the cancellation date] letter from Dr Damodoran states that she has chronic shoulder pain, but provides little other detail. I therefore consider that this condition cannot be rated as fully diagnosed, treated and stabilised (R5)

5. The Tribunal considers that it has no medical evidence before it to determine that the Applicant’s shoulder condition has been fully diagnosed, treated and stabilised. 

   Applicant’s hip pain

6. The Tribunal notes the Secretary’s contentions in relation to the Applicant’s hip pain:

   61. The Secretary accepts, on the basis of the radiological evidence, that the applicant's hip pain was diagnosed at the date of cancellation.

   62. The Secretary contends, however, that there is insufficient evidence to conclude that the condition was fully treated and stabilised.

   63. There  is  evidence  that  the  applicant  had  cortisone  injections  to  her  hips  on  17 November 2014, 10 February 2015, 15 November 2016 and 27 May 2016 (Attachment A, pp 14, 17-20). However, there is no evidence that she had undertaken "physiotherapy with a home exercise programme and stretching exercises" which Dr Armstrong considered to be appropriate and reasonable treatment for this condition (Attachment C).

   64. If the condition is found to have been fully treated and stabilised at the relevant date, the Secretary contends that there is no evidence of functional impact. Dr Damodaran wrote on 13 July 2016 that the applicant had "25% disability of her right leg", but did not elaborate (T61, p 333). The applicant reported to the JCA that she drove to local areas "due to anxiety and fear'', not because of her hip pain, and could stand for 10 minutes on a bad day and 20-30 minutes on a good day (T58, p 326). Episodic or fluctuating conditions must be assessed according to the overall functional impact: s 11(4) of the Rules. Therefore, the reported functional impact is not consistent with a mild functional impact of 5 points under Table 3”.

7. The Tribunal finds that it has no medical evidence before it to determine if this condition is fully diagnosed, fully stabilised or fully treated.

   Applicant’s varicose veins

8. The Tribunal notes the Secretary’s contentions in relation to the Applicant’s varicose veins:

   65.  The Secretary accepts, on the basis of radiological evidence (Attachment A, p 15): that the applicant's condition of varicose veins was fully diagnosed, but contends that there is insufficient medical evidence to find the condition fully treated and stabilised at the relevant date. If the condition is found to have been fully treated and stabilised, the evidence of functional impact is limited to Dr Damodaran's reference to "dull aching pain" more than one year later. Accordingly, the impairment reported by the applicant is not consistent with the descriptor for a mild functional impact of 5 points under Table 3.

9. Reports dated 12 June 2017 and 19 June 2017 from Dr Damodaran were provided to the Tribunal at (A11 and (A12). These were provided to Dr Armstrong for comment. Dr Armstrong comments accordingly:(R5)

   11 July 2017

   Hi Jonathan, I have reviewed this additional medical evidence. This new evidence does not change my opinion of 14/3/17.The 12/6/17 letter from Dr Damodaran is 12 months after the date of cancellation. I spoke to Dr Damodaran on 22/2/17 and at that time he had some difficulty elaborating on the functional impact of Ms Cumming's medical conditions. This letter does not state if Dr Damodaran is referring to the date of cancellation or the current period. It also does not elaborate on the functional impact in relation to the impairment table guidelines.

   The new medical evidence indicates that Ms Cumming has had subacromial bursitis of both shoulders at various times. The 12/6/17 letter from Dr Damodaran says she has failed to respond to cortisone injection and "she says she is unable to perform any overhead activity". This seems to suggest that Dr Damodaran had not confirmed this himself. Appropriate treatment for shoulder conditions also include physiotherapy, and there is no evidence that Ms Cumming has undertaken this treatment. Furthermore studies have shown that it is common to find conditions such as subacromial bursitis on shoulder ultrasounds, even if people have no shouIder symptoms.

   The new medical evidence indicates that Ms Cumming has had trochanteric bursitis of both hips at various times, and the 12/6/17 letter from Dr Damodaran says she has chronic hip pain and has failed to respond to cortisone injections. However physiotherapy with a home exercise programme and stretching exercises are also an appropriate treatment for this condition, and there is no evidence that Ms Cumming has undertaken this   treatment.

   The 15/2/16 Doppler ultrasound of Ms Cumming's right lower limb does show some varicose veins, but did not indicate a deep venous thrombosis. Varicose veins are common and are often asymptomatic.

   This new evidence does not confirm a current diagnosis of carpal tunnel syndrome. The 12/6/17 letter from Dr Damodaran says EMG testing has shown a median neuropathy, but does not state when this test was performed.

   The 16/3/13 letter from a physiotherapist does not seem relevant to the date of cancellation, however I note that even though Ms Cumming was having an exacerbation of her lower back pain at that time, the physiotherapist reported that she had 45 degrees of spinal flexion

10. The Tribunal has no medical evidence before it to determine that the Applicant’s condition of varicose veins is fully diagnosed, fully stabilised or fully treated. The Tribunal notes Dr Armstrong’s has stated at (R5) that this condition is “easily treated” with injections or surgery.  

    ISSUES FOR DETERMINATION

11. The issue falling for determination is whether the decision to cancel the Applicant's DSP on the relevant date (1 June 2016) was correct.

12. This requires consideration of whether or not on 01 June 2016, she was qualified for DSP under subsection 94(1) of the Act and, in particular, whether she had:

    a)a physical, intellectual or psychiatric impairment; and

    b)an impairment of 20 points or more under the Impairment Tables; and 

    c)a continuing inability to work. 

    CONSIDERATION

13. The Tribunal will consider relevant issues, legislation and evidence before it in determining if the Applicant was eligible for DSP on 1 June 2016. 

    Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments

14. The Tribunal accepts at the date of the claim of the Applicant, the Applicant suffered from severe “mental health – anxiety and depression, spine condition – chronic back pain, diabetes, morbid obesity, carpel tunnel symptoms, right shoulder, left hip and varicose veins” as described by Dr Damodaran letter dated 12 June 2017. (R4)

15. The Tribunal therefore accepts that the Applicant satisfies subsection 94(1)(a) of Act.

    Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination

    Mental health

16. The Tribunal notes Dr Armstrong’s commentary in relation to the Applicant’s mental health: 

    I consider that the appropriate rating, as at the date of cancellation on table 5 is 10 points for a moderate impairment [using the information from my phone conversations with Dr Granston and Ms Mladenovic], as follows:

    Self-care and independent living; Ms Cummings has no difficulties with self-care, but has some dependence on others for independent living activities. Moderate impairment.

    Social/recreational activities and travel; Ms Cumming is reluctant to leave her home, does not socialise and only travels  to familiar areas. Severe impairment.

    Interpersonal relationships; Ms Cumming is socially anxious and has lost touch with people. Moderate impairment.

    Concentration and task completion; Ms Cumming can concentrate for about 20 minutes and helps her carer home-school her children.  Moderate impairment.

    Behaviour, planning and decision-making; Ms Cumming has some problems in this area, such as difficulties coping with stress. Moderate impairment.

    Work/training capacity; Dr Granston was hopeful that Ms Cumming would be able to work in the future, although she may have difficulties in attending regularly. Ms Mladenovic said she would find attending work hard, but it would be of benefit to her. Moderate impairment. 

    Hence descriptors a,c,d,e and f are met at a moderate impairment level, although descriptor b is  met at the severe impairment  level. This equates to a rating of 10 points, as at the date of cancellation”.

17. The Tribunal finds the Applicant has a moderate impairment which generates and impairment rating of 10 points under Table 5.

    Spinal condition

18. The Tribunal notes Dr Armstrong’s commentary in relation to the Applicant’s spinal condition.  Dr Armstrong states:

    I therefore consider that the appropriate  rating, as at  the date of cancellation  for Ms Cumming's lumbar spine condition on table 4 [spinal function] was 5 impairment points, as she would have some difficulty bending to knee level and straightening up again. Ms Cumming's statements at the 24/5/16 JCA [she could pick up something light from knee height and did not need assistance to get out of a chair] would mean that the descriptors for the 10 point level were not met. The relatively mild degenerative abnormalities shown on her lumbar spine X-ray are usually age-related, especially in people with a history of manual work. They would generally not be consistent with a moderate to severe spinal impairment. Ms Cumming does report a significant functional impairment, so it may be that an alternative condition such as fibromyalgia is responsible for her symptoms. She may benefit from further investigation and specialist assessment.  I note that Dr Damodoran told  me there is only  1 locally available pain medicine specialist, who has a 3 year waiting list. However given   that Ms Cumming only lives about 20km away from Perth city centre, I would presume that there are rheumatologists and/or orthopaedic specialists within a reasonable distance from her home  (R5 10-11)

19. The Tribunal notes commentary in the Applicant’s Job Capacity Assessment (JCA) which has confirmed Dr Armstrong’s assessment of the Applicant’s spinal condition.  Such commentary has concluded that the condition has a mild functional impact on the Applicant and generates an impairment rating of 5 points.  The Tribunal therefore finds this condition generates an impairment rating of 5 points under table 4 of the impairment tables.

20. As outlined in the ‘Evidence’ section of this decision, the following conditions do not generate impairment points under the impairment tables as these conditions were not fully diagnosed, fully treated or fully stabilised on 1 June 2016:

    ·Morbid obesity.

    ·Carpal tunnel.

    ·Shoulder condition.

    ·Hip pain.

    ·Varicose veins.

    Whether the Applicant has a continuing inability to work (CITW)

21. Based on paragraphs above, the Tribunal finds the Applicant’s claimed conditions achieved 15 points under the Impairment Tables (Table 4-5) and that she fails to satisfy subsection 94(1)(b) of the Act. Given this finding, the Tribunal is not required to consider whether the Applicant had at the date of her claim, a CITW in satisfaction of subsection 94(1)(c) of the Act.

    CONCLUSION

22. The Applicant does not qualify for DSP as her conditions can only be assigned 15 impairment points as at the date her DSP was cancelled.

    DECISION

23. The decision of the AAT1 dated 24 November 2016, is affirmed.

I certify that the preceding 58 (fifty eight) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

........................................................................

Associate

Dated: 31 May 2018

Date(s) of hearing:	13/04/2018
Applicant:	In person
Solicitors for the Respondent:	Ashley Burgess, Sparke Helmore