D’Ambrosio and Secretary, Department of Social Services (Social services second review)

[2016] AATA 828

D’Ambrosio and Secretary, Department of Social Services (Social services second review) [2016] AATA 828 (9 September 2016)

Division	GENERAL DIVISION
File number	2016/1050
Giuseppina D’Ambrosio
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr James Popple, Senior Member
Date	9 September 2016
Date of written reasons	21 October 2016
Place	Canberra

The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal on 4 February 2016 is affirmed.

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

James Popple, Senior Member

CATCHWORDS

SOCIAL SECURITY — disability support pension — cancellation of payment — whether applicant qualified to receive DSP on cancellation date — impairments do not attract a rating of 20 or more points under the Impairment Tables — decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A(c)

Social Security Act 1991, s 94(1)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr James Popple, Senior Member

21 October 2016

1. On 9 September 2016, I conducted a hearing in this matter. I gave my decision, and my reasons, orally at that hearing. On 23 September 2016, the applicant (Mrs D’Ambrosio) requested written reasons for my decision. These are those written reasons. My reasons have been prepared having regard to the requirement, in s 2A(c) of the Administrative Appeals Tribunal Act 1975, that the Tribunal pursue the objective of providing a mechanism of review that is proportionate to the importance and complexity of the matter.

   Summary

2. Mrs D’Ambrosio had a physical impairment when the payment of her disability support pension (DSP) was cancelled. But her impairment was not of 20 points or more under the Impairment Tables. Accordingly, she did not qualify for the DSP under s 94 of the Social Security Act 1991 (the SS Act) on the cancellation date.  I must affirm the Tribunal’s decision on first review.

   Background

3. Mrs D’Ambrosio was granted the DSP on 9 June 1988.  On 7 September 2015, Centrelink advised her that payment of her DSP would be cancelled from 18 October 2015 (the cancellation date).  Mrs D’Ambrosio sought review of that decision.  On 29 October 2015, an authorised review officer affirmed the earlier decision.

4. On 1 December 2015, Mrs D’Ambrosio applied to the Tribunal for a review of that decision. On 4 February 2016, the Tribunal on first review affirmed Centrelink’s decision. On 26 February 2016, Mrs D’Ambrosio applied to the Tribunal, under s 179 of the Social Security (Administration) Act 1999 (the Administration Act), for review (“AAT second review”) of the Tribunal’s decision on first review.

5. On 30 June 2016, this matter was listed for hearing on 22 August 2016.  Within the first few minutes of the hearing, Mrs D’Ambrosio indicated that she wanted an adjournment to seek legal advice.  With the consent of both parties, I adjourned the hearing until a date to be fixed.  On 26 August 2016, the matter was re-listed for hearing on 9 September 2016.

   Decision under review

6. The decision under review is the Tribunal’s decision on first review on 4 February 2016 affirming Centrelink’s decision to cancel payment of Mrs D’Ambrosio’s DSP.

   Issues

7. The issue in this review is whether Mrs D’Ambrosio qualified for the DSP under s 94 of the SS Act on the cancellation date. That depends on whether she had a physical, intellectual or psychiatric impairment; whether that impairment was of 20 points or more under the Impairment Tables; and whether she had a continuing inability to work.

   Legislative framework

8. Section 94(1) of the SS Act relevantly provides:

   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 of 20 points or more under the Impairment Tables; and

   (c)  one of the following applies:

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

   …

   …

9. Section 23(1) of the SS Act provides that Impairment Tables means the tables determined by an instrument under s 26(1).  That instrument is the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

   Did Mrs D’Ambrosio’s have a physical, intellectual or psychiatric impairment on the cancellation date (s 94(1)(a) of the SS Act)?

10. The Secretary accepts, and I find (on the balance of probabilities) that, on the cancellation date, Mrs D’Ambrosio suffered from the following conditions:

    ·spondylosis;

    ·hypertension / high cholesterol;

    ·respiratory condition / obstructive sleep apnoea;

    ·Type II diabetes;

    ·heart condition / chest pain;

    ·hearing loss; and

    ·headaches / migraines.

    Accordingly, MrsD’Ambrosio had a physical impairment on the cancellation date. She satisfies s 94(1)(b) of the SS Act.

    Was Mrs D’Ambrosio’s impairment of 20 points or more under the Impairment Tables (s 94(1)(b) of the SS Act)?

11. The Impairment Tables define “impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.[1]  An impairment rating can only be assigned to an impairment if the condition causing the impairment is “permanent” and the impairment is likely to persist for more than two years.[2]  A condition is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years.[3]

    [1]     Impairment Tables, s 3.

    [2]     Impairment Tables, s 6(3).

    [3]     Impairment Tables, s 6(4).

    Spondylosis

12. The Secretary accepts, and I find (on the balance of probabilities), that Mrs D’Ambrosio’s spondylosis was fully diagnosed, treated and stabilised on the cancellation date.  On 1 July 2015, Dr James Cookman reported that Mrs D’Ambrosio’s symptoms were “pain and limited exercise tolerance”.  He reported that this condition was expected to last more than five years, but that the effect of the condition on her ability to function within the next five years was “uncertain” and a “prognosis difficult”.  The Tribunal on first review assessed Mrs D’Ambrosio’s impairment under Table 4 at 5 points, indicating a “mild functional impact on activities involving spinal function”.  On 7 September 2016, Dr Ian Mills reported that this “is a permanent condition … [and having] recently assessed Mrs D’Ambrosio I find that her spinal condition has a moderate functional impact on activities involving spinal function”.  He would assign 10 points for her spondylosis.

13. The Secretary says that the evidence of Dr Cookman should be given greater weight than that of Dr Mills as Dr Cookman’s report related to the functional impact of Mrs D’Ambrosio’s spondylosis as at the cancellation date.  The Secretary says that, for this reason, 5 points is the most appropriate rating to assign this condition.

14. I agree.  I find (on the balance of probabilities) that Mrs D’Ambrosio’s spondylosis has a mild functional impact on activities involving spinal function: an impairment rating of 5 points should be assigned under Table 4.

    Hypertension / high cholesterol

15. The Secretary accepts that Mrs D’Ambrosio’s hypertension and high cholesterol were fully diagnosed, treated and stabilised on the cancellation date.  I am not convinced that that is the case.  But, in any event, Dr Cookman reported that Mrs D’Ambrosio’s hypertension is generally well managed and has minimal impact on her ability to function.  And no medical evidence has been provided in relation to the functional impact of her high cholesterol.  Accordingly, there is no evidence upon which I can assign an impairment rating for Mrs D’Ambrosio’s hypertension or high cholesterol under the Impairment Tables.

    Respiratory condition / obstructive sleep apnoea

16. The Secretary accepts, and I find (on the balance of probabilities), that Mrs D’Ambrosio’s respiratory condition and obstructive sleep apnoea were fully diagnosed, treated and stabilised on the cancellation date.

17. On 21 July 2016, Dr Mills reported that Mrs D’Ambrosio was diagnosed with severe sleep apnoea in September 2012 and that she commenced using a CPAP (Continuous Positive Airways Pressure) machine at that time.  Dr Cookman reported that this condition is generally well managed and causes minimal or limited impact on Mrs D’Ambrosio’s ability to function.  On 7 September 2016, Dr Mills reported that the functional impact of this condition was “mild”.

18. In relation to the respiratory condition, the Secretary relies on Mrs D’Ambrosio’s evidence to the Tribunal on first review.  Mrs D’Ambrosio said then that her respiratory condition was pneumonia, which she contracted in February or March 2015 and which had since resolved.

19. Accordingly, there is no evidence upon which I can assign an impairment rating for Mrs D’Ambrosio’s respiratory condition and obstructive sleep apnoea under the Impairment Tables.

    Type II diabetes

20. The Secretary accepts, and I find (on the balance of probabilities), that Mrs D’Ambrosio’s Type II diabetes was fully diagnosed, treated and stabilised on the cancellation date.

21. On 1 July 2015, Dr Cookman reported that this condition was generally well managed and causes minimal or limited impact on Mrs D’Ambrosio’s ability to function.

22. There is no evidence upon which I can assign an impairment rating for Mrs D’Ambrosio’s Type II diabetes under the Impairment Tables.

    Heart condition / chest pain

23. Mrs D’Ambrosio had a successful repair of an atrial septal defect in 1986.  The Secretary accepts, and I find (on the balance of probabilities), that Mrs D’Ambrosio’s heart condition was fully diagnosed, treated and stabilised on the cancellation date.

24. But there is no medical evidence of any functional impact associated with Mrs D’Ambrosio’s heart condition, and no evidence upon which I can assign an impairment rating for the condition under the Impairment Tables.

    Hearing loss

25. On 8 September 2015, Dr Cookman reported that Mrs D’Ambrosio suffers from hearing loss.  On 7 September 2016, Dr Mills reported that this condition has a “mild functional impact on activities involving hearing”; that “Mrs D’Ambrosio has some difficulty hearing a conversation at an average volume in a room with background noise”; that “she has difficulty hearing conversations when using a standard telephone, particularly in a room with background noise”; and that she uses a hearing aid.

26. There is no medical evidence of any functional impact associated with Mrs D’Ambrosio’s hearing loss (when using her hearing aid[4]), and no evidence upon which I can assign an impairment rating for the condition under the Impairment Tables.

    [4]     The introduction to Table 11 (which is about hearing and other functions of the ear) requires that the table “should be applied with the person using any prescribed hearing aid, cochlear implant or other assistive listening device that they usually use”.

    Headaches / migraines

27. In a medical certificate dated 8 September 2015, Dr Cookman reported that Mrs D’Ambrosio suffered from vascular headaches.  On 7 September 2016, Dr Mills reported that Mrs D’Ambrosio has chronic migraines resulting in “disabling headaches 6 times per month”.  He goes on to say that it has “a significant impact upon her ability to concentrate and complete the job at hand”.

28. Even if Mrs D’Ambrosio’s headaches and migraines could be said to be fully diagnosed, there is no evidence that she has been treated for those conditions.  I could not find that her headaches or migraines have been fully treated and fully stabilised.  Accordingly, I can assign no impairment points under the Impairment Tables for Mrs D’Ambrosio’s headaches or migraines.

    Other conditions

29. On 8 September 2015, Dr Cookman reported that Mrs D’Ambrosio suffered from other conditions including oesophageal reflux and polymyalgia rheumatica.  There is no medical evidence before me to support a finding that either of these conditions is fully treated or fully stabilised.

    Total impairment rating

30. On the cancellation date, Mrs D’Ambrosio had a total impairment rating of 5 points under the Impairment Tables: 5 points under Table 4. Because her impairment was not of 20 points or more, she does not satisfy s 94(1)(b) of the SS Act.

    Did Mrs D’Ambrosio have a continuing inability to work on the cancellation date (s 94(1)(c)(i) of the SS Act)?

31. Because of my conclusion that Mrs D’Ambrosio’s impairment was not of 20 points or more, I do not need to consider whether she had a continuing inability to work.

    Conclusion

32. On the cancellation date, Mrs D’Ambrosio had a physical impairment for the purposes of s 94(1)(a) of the SS Act. But her impairment was not of 20 points or more under the Impairment Tables, so she does not satisfy the requirement in s 94(1)(b). Accordingly, she did not qualify for the DSP on the cancellation date.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

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

Associate

Dated 21 October 2016

Dates of hearing	22 August and 9 September 2016
Applicant	In person
Counsel for the Respondent	Ms Nivvy Venkatraman
Solicitors for the Respondent	Legal Services Group, Department of Human Services