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

[2021] AATA 4759

CWYF and Secretary, Department of Social Services (Social services second review) [2021] AATA 4759 (21 December 2021)

Division:GENERAL DIVISION

File Number(s):      2020/2451

Re:CWYF

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R Maguire

Date:21 December 2021

Place:Brisbane

The Tribunal affirms the decision under review.

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

Member R Maguire

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Whether applicant suffered a physical, intellectual or psychiatric impairment – Where applicant suffers from spinal, upper and lower limb and mental health conditions – Whether conditions fully diagnosed in the qualification period – Whether conditions fully treated and stabilised in qualification period – Whether applicant’s impairment is 20 points or more under the impairment tables – Where overall impairment arising from fully diagnosed, fully treated, and fully stabilised conditions is 5 points – Decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Active Participation for Disability Support Pension) Determination 2014

CASES

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Pignat and Secretary, Department of Social Services (Social services second review) [2017] AATA 2745

SECONDARY MATERIALS

Social Security Guide, Version 1.287

REASONS FOR DECISION

Member R Maguire

21 December 2021

1. On Tuesday, 12 February 2019, the applicant lodged a claim for Disability Support Pension (“DSP”)[1] in which she listed her disabilities as:[2]

   (a)double scoliosis, early degenerative of the spine, arthritis of the spine;

   (b)major depressive disorder (as diagnosed by psychiatrist), PTSD, anxiety, panic attacks, flashbacks due to a sexual assault by a medical professional;

   (c)sleep apnoea.

   [1] Exhibit 1, T Documents, T53, pp 195-224.

   [2] Exhibit 1, T Documents, T53, p 219.

2. At question 176 of her claim form, the applicant ticked the “Yes” box[3] in response to the question “Are you expecting to have future treatment for your disability or medical condition?” and described the type of treatment is being “physio, acupuncture psychotherapies, pain clinic.” She described the reason for treatment as “to try & lessen the severity of my pain both physical and psychological. To have me functioning more effectively other than days confined to bed.” In response to the question “When you expect to receive this treatment (if known)” she responded: “Ongoing. For pain clinic, as soon as I can get into the Princess Alexandra Hospital.”

   [3] Exhibit 1, T Documents, T53, p 221.

3. On 13 March 2019, a DSP Medical Eligibility Assessment Recommendation (“MEAR”) was conducted by a rehabilitation counsellor, who concluded that there was insufficient evidence to determine that the applicant’s medical conditions were fully diagnosed, treated and stabilised.[4]

   [4] Exhibit 1, T Documents, T58, pp 231-232.

4. On 14 March 2019, the Department of Human Services rejected the applicant’s claim for DSP on the basis that there was not sufficient medical evidence to assess her claim.[5]

   [5] Exhibit 2, Attachment A.

5. On 17 May 2019, in the course of a further MEAR, the applicant was assessed as ineligible for DSP as her conditions were not fully diagnosed, treated and stabilised,[6] and on 18 May 2019, her claim for DSP was again rejected.[7]

   [6] Exhibit 1, T Documents, T66,  p 244.

   [7] Exhibit 2, Attachment B.

6. On 7 January 2020, an accredited exercise physiologist (with contribution from a psychologist) conducted a face-to-face assessment of the applicant and prepared a Job Capacity Assessment Report (JCA).[8] The JCA report recommended that:

   (a)  the applicant’s mental health conditions were fully diagnosed but not fully treated or stabilised;

   (b)  the applicant’s spinal condition was fully diagnosed, treated and stabilised and caused a mild impairment attracting an impairment rating of five points under Table 4;[9]

   (c)   the applicant’s sleep apnoea condition was not fully diagnosed, treated and stabilised;

   (d)  the applicant’s migraine condition was not fully diagnosed, treated and stabilised;

   (e)  the applicant’s fibromyalgia condition was not fully diagnosed, treated and stabilised; and

   (f)    the applicant’s right foot condition was not fully diagnosed, treated and stabilised.

   [8] Exhibit 1, T Documents, T74, p 256.

   [9] See Table 4 in Part 3 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

7. On 17 January 2020, an Authorised Review Officer (“ARO”) made similar findings to the JCA, and affirmed the decision to reject the applicant’s claim for DSP.[10]

   [10] Exhibit 1, T Documents, T80, p 281.

8. On 6 April 2020, the Social Services and Child Support Division (“AAT1”) affirmed the decision to reject the applicant’s claim for DSP.[11]

   [11] Exhibit 1, T Documents, T2, pp 5-11.

9. On 27 April 2020, the applicant applied to the General Division of the Administrative Appeals Tribunal for further review of the decision to reject her DSP claim.[12]

   [12] Exhibit 1, T Documents, T1, pp 1-4.

10. This matter was heard by the Tribunal on 21 September 2021 at which time the applicant was self-represented, and the Secretary  was represented by Ms Underhill.

11. The qualification period was the period of 13 weeks commencing on 12 February 2019.

12. The Tribunal admitted exhibits as per the attached exhibit register.

    THE LAW

13. The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (“the Act”), the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension)Determination 2011 (“the Determination”) and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“the POS Determination”).

14. The relevant policy is contained in the Guide to Social Security Law.[13]

    [13] Social Security Guide, Version 1.287, <>

    The Administration Act requires that in order to receive DSP payments, an applicant must be qualified for DSP either on the date of application, or become so qualified at some stage within the period of 13 weeks following[14] (“the qualification period”).

    [14] Administration Act, Clause 4 of Schedule 2, discussed by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123, and cases cited therein.

15. Section 94 of the Act prescribes the criteria that must be met during the qualification period in order to receive payment of DSP. For present purposes, the relevant part of this section is:

    94       Qualification for disability support pension

    (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 20 points or more under the Impairment Tables; and

    (c) one of the following applies:

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

    (ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;

    …

16. The qualification criteria set out in section 94(1) is conjunctive, and if one element is not satisfied, a person will not be qualified for DSP.

17. The Impairment Tables referred to in section 94 are set out in the Determination made under section 26 of the Act, and which came into force on 1 January 2012.

18. The Determination defines “impairment” thus:

    impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.[15]

    [15] Section 3 of the Determination.

19. Section 5(2) of the Determination provides:

    (2)  The Tables:

    (a) unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and

    (b) are function based rather than diagnosis based; and

    (c) describe functional activities, abilities, symptoms and limitations; and

    (d) are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.

20. The impairment of a person must 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.[16]

    [16] Section 6(1) of the Determination.

21. The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[17]

    [17] Section 6(2) of the Determination.

22. An impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent,[18] and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than two years.[19]

    [18] Section 6(3)(a) of the Determination.

    [19] Section 6(3)(b) of the Determination.

23. Section 8 of the Determination is headed “Information that must not be taken into account in applying the Tables”. Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[20] Moreover, unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.[21] The Determination provides the following example in this regard:

    Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.

    [20] Section 8(1) of the Determination.

    [21] Section 8(2) of the Determination.

24. The Determination provides that a condition is regarded as permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; and has been fully treated; and the condition has been fully stabilised; and the condition is more likely than not in light of available evidence to persist for more than two years.[22]

    [22] Section 6(4) of the Determination.

25. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next two years.[23]

    [23] Section 6(5) of the Determination.

26. A condition is considered to be fully stabilised[24] if:

    (a)either the person has undertaken reasonable treatment for the condition and 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; or

    (b)the person has not undertaken reasonable treatment for the condition; and

    (i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    [24] Section 6(6) of the Determination.

27. Reasonable treatment is treatment that is: available at a location reasonably accessible to the person; is at reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[25]

    [25] Section 6(7) of the Determination.

28. The Determination sets out that, in selecting the applicable table in Part 3 of the Determination for the assessment of work-related impairment for DSP,[26] it is necessary to:

    (a)identify the loss of function; then

    (b)refer to the table related to the function affected; then

    (c)identify the correct impairment rating.

    [26] Section 10 of the Determination.

29. The Tables provide for the allocation from points from 0 to 30 depending on the severity of impairment. In essence, these are as follows:

    0 points           No functional impact

    5 points           Mild functional impact

    10 points         Moderate functional impact

    20 points        Severe functional impact

    30 points         Extreme functional impact

30. In assessing impairments where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table. Where more than one table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[27]

    [27] Sections 10(3)-(4) of the Determination.

31. Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[28]

    [28] Sections 10(5)-(6) of the Determination.

32. An impairment rating can only be assigned in accordance with the rating points in each impairment table; it cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all of the descriptors for that level of impairment are satisfied; and a rating cannot be assigned in excess of the maximum rating specified in each table.[29]

    [29] Section 11 of the Determination.

33. In order to have a continuing inability to work, which is required to satisfy section 94(1)(c) of the Act, a person must meet the criteria of section 94(2), which requires that a person must:

    (a)if they do not have a severe impairment, have actively participated in a program of support; and

    (d)be unable to work for at least 15 hours per week independently of a program of support;[30] and

    (e)be unable to undertake a training activity during the next 2 years, or if the impairment does not prevent the person from undertaking a training activity but 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.

    [30] See definition of “work” in section 94(5) of the Act.

34. A person’s impairment is considered to be a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single impairment table.[31]

    [31] Section 94(3B) of the Act.

35. The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim. Otherwise, where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, the start date for DSP is the date the person becomes qualified.[32]

    [32] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.

    SUBMISSIONS – RESPONDENT

36. The Secretary  submitted that as the applicant lodged her application for DSP on 12 February 2019, the qualification period ran from that date until 14 May 2019.[33] This was not disputed by the applicant.

    Does the applicant suffer a physical, intellectual or psychiatric impairment – section 94(1)(a) of the Act?

    [33] Exhibit 2, paragraph 19.

37. The Secretary  has accepted[34] that the applicant has impairments, and that paragraph (a) of section 94(1) of the Act was satisfied during the qualification period.

    Do the applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?

    [34] Exhibit 2, paragraph 40.

    Mental Health Function – Table 5

38. The Secretary accepted that the applicant’s psychological condition was fully diagnosed and contended that the correct diagnosis is a depressive illness.[35]

    [35] Exhibit 2, paragraph 43.

39. The Secretary submitted that the applicant’s PBS Patient Summary Report[36] for the period 1 January 2016 to 14 May 2019 only showed antidepressant medication being issued to the applicant on 31 March 2016, 28 February 2017, and 2 August 2017, and that this was not consistent with the reports of Dr Pau[37] and Dr Ferguson.[38] The Secretary also pointed out that the applicant’s Medicare Patient History Report confirmed that the applicant engaged in psychotherapy with a clinical psychologist on seven occasions between 18 February 2016 and 21 June 2016.[39]

    [36] Exhibit 2, Attachment C.

    [37] Exhibit 1, T Documents, T46, p 164.

    [38] Exhibit 1, T Documents, T52, p 193; T59, p 233.

    [39] Exhibit 2, Attachment D.

40. The Secretary relied upon the medicolegal report[40] dated 13 November 2018 by Dr Gary Larder, consultant psychiatrist, who recommended that:[41]

    Current medication needs to be reviewed. It needs to continue and use to be reviewed at three monthly intervals. There is no doubt that psychotropic medications of some sort will need to [be] part of the treatment plan for at least two years.

    Psychotherapy will need to review and reconsider the relevance and impact of issues in her life history and the post separation parenting issues in particular.

    This management plan will need to monitor her alcohol use [if she does not consume alcohol the risk of alcohol related issues is zero, the more alcohol he [sic] consumes the greater the risk of relapse of the psychiatric disorder].

    …

    The prognosis is linked to the effectiveness of treatment and The Mother’s compliance with it.

    …

    The prognosis should be reviewed at six monthly intervals.

    [40] Exhibit 1, T Documents, T50, p 182.

    [41] Ibid at p 190.

41. The Secretary submitted, and the Tribunal accepts and finds, that there is no evidence indicating that from November 2018 the applicant underwent a medication review or commenced a new course of psychotropic medication under the supervision and review of a psychiatrist as recommended by Dr Larder.

42. In consequence of this finding, and the other evidence discussed above, the Tribunal further finds that the applicant’s depressive illness was not fully treated and stabilised at the qualification period, and therefore no impairment rating can be assigned under Table 5.

    Spinal condition – Table 4

43. The Secretary accepted that the applicant’s spinal condition was fully diagnosed treated and stabilised in the qualification period.[42]

    [42] Exhibit 2, paragraph 60.

44. The Secretary referred the Tribunal to reports[43] and submitted that the applicant’s condition causes minimal impairment to spinal function and would attract an impairment rating of zero points under Table 4 – Spinal Function.[44] However, the Job Capacity Assessment Report[45] recorded that the Applicant has some difficulty in bending to knee level and straightening up again without difficulty, and on this basis in accordance with paragraph (1)(b) of Table 4, it relevantly awarded 5 points for a mild functional impact on activities involving spinal function.

    [43] Exhibit 1, T Documents, T55, p 226; T59, p 233; and T74, p 255.

    [44] Exhibit 2, paragraph 62.

    [45] Exhibit 1, T Documents T74, pp 265-266.

45. In reliance upon this evidence, the Tribunal assigns an impairment rating of 5 points in respect of Table 4.

    Sleep apnoea, fibromyalgia, and migraine

    Sleep apnoea

46. The Secretary accepted that the applicant’s sleep apnoea condition was fully diagnosed, treated and stabilised in the qualification period,[46] and could be assigned a rating under Table 1.[47]

    [46] Exhibit 2, paragraph 63.

    [47] Exhibit 2, paragraph 64.

47. The Secretary relied upon the report[48] dated 22 March 2019 from Dr Ferguson, who listed the applicant’s symptoms stemming from her obstructive sleep apnoea condition as “fatigue, daytime sleepiness, poor concentration”. Dr Ferguson also reported that the applicant’s mental health condition also caused symptoms of “fatigue” and “poor concentration”.

    [48] Exhibit 1, T Documents, T59, p 234.

1. The Secretary contended that where two or more conditions cause a similar impairment, and only one of the conditions is fully diagnosed, treated and stabilised, it is not possible to assign an impairment rating unless the Tribunal can be satisfied that the level of impairment arises solely from the fully diagnosed, treated and stabilised condition.[49]

   [49] Pignat and Secretary, Department of Social Services (Social Services Second Review) [2017] AATA 2745.

2. In the present case, the evidence before the Tribunal is not sufficient to satisfy it that the level of impairment arises solely from the applicant’s sleep apnoea condition, as opposed to her pain condition or mental health condition, and therefore no impairment rating can be assigned under Table 1.

   Fibromyalgia

3. The Secretary referred the Tribunal to a report of specialist pain medicine physician Dr Noam Winter dated 21 June 2019 which provided no diagnosis of fibromyalgia.[50] The Secretary also referred the Tribunal to the medical certificate[51] dated 11 December 2019 of Dr Nicholas Martin which provided a diagnosis of “possible fibromyalgia” and listed the applicant’s fibromyalgia symptoms to include “chronic fatigue”, “chronic pain” and “chronic stress”. The Secretary also referred the Tribunal to the medical report dated 9 January 2020 by Dr Nicholas Martin who reported that the applicant “has a diagnosis of fibromyalgia”.[52]

   [50] Exhibit 1, T Documents, T67, p 246.

   [51] Exhibit 1, T Documents, T73, p 254

   [52] Exhibit 1, T Documents, T79, p 278.

4. The Secretary submitted that the only clear evidence of a diagnosis of fibromyalgia fell outside the qualification period, and that in consequence the applicant’s fibromyalgia condition was not fully diagnosed, treated and stabilised in the qualification period, and that no rating can be assigned under Table 1 for any resulting payment.

5. The Tribunal accepts the submission and assigns no rating in respect of the fibromyalgia condition under table 1.

   Migraine

6. The Secretary referred the Tribunal to the medical certificate dated 4 September 2019 authored by Dr Matthew Isbel which diagnosed the applicant with “migraine” and listed current and future treatments as “analgesia” and “maybe prevent”.[53] The Secretary contended that the diagnosis of migraine was made outside of the qualification, and that there was insufficient medical evidence regarding the investigation, treatment and prognosis of this condition to determine that it was fully treated and stabilised as of the qualification period.

   [53] Exhibit 1, T Documents, T71, p 251.

7. Accordingly, the Secretary contended (and the Tribunal accepts) that the applicant’s migraine condition was not fully diagnosed, treated and stabilised as at the qualification period and no impairment rating can be assigned to it under Table 1.

8. Having considered the totality of the evidence, the Tribunal accepts the Secretary’s submissions in this regard. Accordingly, no impairment rating is assigned under Table 1 in respect of Migraine.

   Right foot injury

9. The Secretary accepted that the applicant’s right foot injury was fully diagnosed in the qualification period, but submitted that there was no evidence regarding the treatment and prognosis for this condition as at the qualification period, and that no impairment rating could be can be assigned under Table 3 in respect of it.

10. The Tribunal has reviewed the available evidence and accepts this submission and finds that the applicant’s right foot condition was not fully treated and stabilised as at the qualification period, and that no impairment rating under Table 3 may be assigned in respect of the applicant’s right foot injury.

    Overall impairment rating

11. The Secretary  contended[54] that the applicant’s overall impairment rating for the impairment arising from fully diagnosed, fully treated and fully stabilised conditions is nil points, and therefore she does not satisfy section 94(1)(b) of the Act.

    [54] Exhibit 2, paragraph 83.

12. For the reasons above, the Tribunal assigns an overall impairment rating of 5 points. The applicant, nonetheless, does not satisfy section 94(1)(b) of the Act which requires an impairment rating of 20 points or more.

    CONCLUSION

13. In view of these findings, it is unnecessary to consider whether or not the applicant has a continuing inability to work for the purposes of section 94(1)(c) of the Act.

14. For the above reasons the decision made by the AAT1 on 6 April 2020 is affirmed.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

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Associate

Dated: 21 December 2021

Date(s) of hearing:	21 September 2021
Applicant:	By telephone
Solicitors for the Respondent:	Services Australia

EXHIBIT REGISTER

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
1	Section 37 T-Documents (T1 to T88 pages 1 to 361)	R	-	26 May 2020
2	Respondent’s Statement of Facts, Issues and Contentions including ·    Attachment A – Centrelink Notice dated 14 March 2019 ·    Attachment B – Centrelink Notice dated 18 May 2019 ·    Attachment C - Applicant’s PBS Patient Summary Report ·    Attachment D - Applicant’s Medicare Patient History Report.	R	4 November 2020	4 November 2020
3	Applicant’s Medical Evidence including: Report of Dr Stephanie Ferguson (Victoria Point Surgery) dated 28 November 2018 (duplicate of Exhibit 5) Report of Dr Nicholas Martin (Victoria Point Surgery) dated 17 November 2020 Letter from Relationships Australia dated 26 October 2020	A	-	7 December 2020
4	Radiology Report of Dr Paul O’Connell (Brisbane Private Imaging) (duplicate of T16)	A	15 October 2014	12 January 2021
5	Radiology Report of Dr S.V Jatkar (Camberwell Radiology)	A	27 July 1999	13 January 2021
6	Letter of Dr Lesley Wyld (Victoria Point Surgery)	A	14 August 2020	17 January 2021 and 1 February 2021
7	Photograph of letter from Madonna Schmierer	A	21 March 2016	15 July 2016