Davidson and Secretary, Department of Social Services (Social services second review)
[2016] AATA 183
•29 March 2016
Davidson and Secretary, Department of Social Services (Social services second review) [2016] AATA 183 (29 March 2016)
Division
GENERAL DIVISION
File Number(s)
2015/4157
Re
Sonia Davidson
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 29 March 2016 Place Sydney The Tribunal affirms the decision under review.
..........................[sgd]..............................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - eligibility - upper limb function - lower limb function - spinal function - program of support not completed - severe impairment rating not found under any impairment table - decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999
SECONDARY MATERIALS
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
REASONS FOR DECISION
Dr I Alexander, Member
29 March 2016
On the 13 December 2012 Ms Davidson, who is currently 53 years old, lodged a claim for disability support pension (DSP).
On the 30 April 2013 the former Social Security Appeals Tribunal (“SSAT”) found that Ms Davidson was qualified for DSP.
On 11 October 2013 Ms Davidson received a lump sum compensation payment and her DSP was subsequently cancelled.
It was agreed that there was a preclusion period from 5 December 2012 and 24 February 2015 with respect to Centrelink income support entitlements.
On 29 January 2015 Ms Davidson lodged a new claim for disability support pension (DSP) on the basis that she suffered several medical conditions which were having an impact on her ability to function.
Ms Davidson’s claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular, she did not satisfy s 94(1)(b) of the Act as her impairment rating was not 20 points or more under the Impairment Tables.
In a decision dated 29 July 2015, the SSAT found that Ms Davidson had a total impairment rating of 30 points with 10 points under Impairment Table 2, 10 points under Impairment Table 3 and 10 points under Impairment Table 4 so that she did satisfy s 94(1)(b) of the Act.
However, the SSAT found that she did not satisfy s 94(1)(c) of the Act which requires that the person has a “continuing inability to work” because she did not have a “severe impairment” under a single Impairment Table and had not actively participated in a program of support (POS) as required by 94(2)(aa) of the Act.
In these proceedings Ms Davidson seeks review of the SSAT decision.
Ms Davidson attended the hearing by telephone and was self-represented.
ISSUES
In order to qualify for DSP, Ms Davidson must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 29 January 2015 and 30 April 2015 (the claim period).
Section 94(1) of the Act provides that 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)the person has a continuing inability to work as defined by the Act.
The Respondent concedes and the Tribunal accepts that Ms Davidson suffers medical conditions that cause impairment and she therefore satisfied s 94(1)(a) of the Act at the time of his claim for DSP.
In her application Ms Davidson lists the following disabilities:
Chronic pain (R) & (L) shoulder, mobility restriction (R) & (L) knee, depression and anxiety, breast cancer, 3 bulging disc in neck.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a), a condition is permanent if it is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and
·fully treated (paragraph 6(4)(b)); and
·fully stabilised (paragraph 6(4)(c)); and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The Introduction to each relevant Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Also, the Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.
The Respondent contends that Ms Davidson suffers medical conditions of the upper limbs, lower limbs and spine which, during the claim period, were permanent for the purposes of the Impairment Determination so that a rating under Impairment Tables 2, 3, and 4 can be applied.
The Respondent also contends that Ms Davidson suffers a moderate impairment with respect to each of these Tables so a rating of 10 points under each Table can be applied resulting in a total rating of 30 points under the Impairment Tables which means that she did satisfy section 94(1)(b) of the Act.
However, the Respondent contends that, during the claim period, Ms Davidson could not satisfy section 94(1)(c) of the Act as she did not have a “continuing inability to work” because she did not have a “severe impairment” as defined in the s 94(3B) of the Act and had not actively participated in a POS as required by 94(2)(aa) of the Act.
It is agreed that prior to the date of claim Ms Davidson had not participated in a designated program which means that she could not satisfy Part 2 section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“the POS Determination”).
Therefore, Ms Davidson could not qualify for DSP unless, during the claim period, she had a “severe impairment” as defined in s 94(3B) of the Act, that is 20 points or more under a single Impairment Table, that is, under Tables 2, 3 or 4.
For completeness, I note that in a letter dated 27 November 2015, Dr Vaux, psychiatrist, confirmed a diagnosis “Adjustment Disorder with Major Depressive features”. As there is no evidence of a diagnosis being made by a psychiatrist or clinical psychologist prior to, or during the claim period, a rating under Impairment Table 5 cannot be applied.
Also, with respect to Ms Davidson’s “breast cancer”, although I accept that, during the claim period, this condition was permanent for the purposes of the Impairment Determination there is, in my view, insufficient available evidence to allow for a reasonable assessment of the functional impact of that condition during that period.
Impairment Table 2 - Upper Limb Function
In a Centrelink Medical report dated 13 December 2012 Dr Nachiappan, GP, listed chronic pain as a medical condition with most impact, noted current symptoms as “pain in shoulders & knees, numbness in right & left hands, pain in neck & chronic headache”. He described impact on ability to function as “unable to complete range of movements, unable to endure periods of standing /walking” but provides no other details.
In a Job Capacity Assessment (JCA) report submitted on 21 December 2012 the assessor noted, inter alia, the following:
Mrs Davidson reports she experiences ongoing pain with her right shoulder, is unable to lift her arm to shoulder height, has numbness and reduced grip with her right hand resulting in difficulty with manual handling activities, has difficulty with push/pull activities, is unable to hang out the washing and uses a dryer, is unable to mash vegetables, has difficulty undoing screw top jars and is unable to do the housework relying on her ex-partner and her adult children to assist as able.
The assessor considered that Ms Davidson suffered a moderate functional impact on activities using hands and arms and recommended a rating of 10 points under Impairment Table 2.
In an incomplete and undated report, which appears to have been prepared for the purposes Whole Person Impairment assessment for a Worker’s Compensation Claim, Dr Long, surgeon, noted that Ms Davidson has bilateral restriction of shoulder movements and states that because of her various disabilities she requires “constant assistance at home…including shopping” but provides no other details with respect to functional impact.
In an undated Centrelink Medical Report, Dr Awujo, GP, stated that Ms Davidson has been his patient since 10 April 2014 and listed “right rotator cuff tear” as a medical condition with most impact.
Dr Awujo stated that right rotator repair was performed in August 2006 and May 2011 and noted current symptoms as “restriction in right shoulder movements and chronic pain”. He described impact on ability to function “condition has affected movement especially those involving lifting and other minor shoulder movements. Quality of life has been significantly impacted resulting in poor sleep and disturbance in behaviour”.
In a JCA report submitted on 2 April 2015 the assessor noted inter alia the following:
Today Sonya [sic] reported that she is right handed. She said she cannot work overhead at all…can only work below shoulder height…puts her washing in clothes dryer or on a clothes horse…her daughter or friend does her heavier shopping…her daughter or friend cleans her floors or she does so with pacing…she can cook her own meals…she uses an i-pad, not a computer keyboard…she reported no difficulty with using a pen or doing up buttons…she can lift a large milk carton out of the fridge using both hands…she cannot undo lids if they are too tight…she said she can only drive an automatic car for a period of 30 minutes…Sonya reported to the assessor that she had surgery to her left shoulder in 2009 as a result of a work accident but the assessor was unable to find any medical evidence to support this. [emphasis added]
I note that in a letter dated 13 July 2009 Dr Crowley, orthopaedic surgeon, noted that Ms Davidson injured her left knee following a fall at work.
The assessor considered that Ms Davidson suffered a mild functional impact on activities using hands and arms and recommended a rating of five points under Impairment Table 2.
Ms Davidson told the SSAT, inter alia, the following:
…[she] gets difficulty with her arms from the shoulder injuries and operations…she cannot lift more than about 2 kg, she cannot hang up her washing and she avoids shopping when she can…she needs two hands to lift a kettle …she has difficulty writing because of constant tingling and numbness in the middle finger…she is able to fill in forms but needs to frequently stop and rest …she has great difficulty doing up shoe laces and does not manage small buttons…she uses only one finger on a keyboard…she finds removing lids from bottles and jars very difficult because she has no strength in her arms…
Ms Davidson told the Tribunal that in January 2016 she moved to South Australia where she lives alone in a unit which is close to where her daughter lives. She said that she is able to look after herself with some assistance from her daughter and friends and is able to drive herself to in an automatic car for up to one hour.
Conclusion
In my view, the available evidence with respect to the functional of impact on activities using hands and arms during the claim period is somewhat limited and inconsistent. The evidence is essentially based on Ms Davidson’s self- report of symptoms with little corroboration.
I accept that, during the claim period, Ms Davidson did suffer impairment with respect to upper limb function and that the evidence suggests a mild to moderate impact on activities using hands or arms.
However, after due consideration of the descriptors in Impairment Table 2, I am satisfied that the available evidence does not support a conclusion that, during the claim period, Ms Davidson suffered a “severe” functional impact on activities using hands and arms.
Impairment Table 3 – Lower Limb Function
In a letter dated 8 March 2012, Dr Crowley noted that Ms Davidson had a right knee arthroscopy in the past and has “ongoing anterior knee pain” and states that “she will require further arthroscopic debridement in the future and in the distant future, knee replacement surgery”.
As noted above, in his report of 13 December 2012, Dr Nachiappan referred to “chronic pain” in the knees and described impact on ability to function as “unable to endure periods of standing /walking” but provided no other details.
In the JCA report of 21 December 2012 the assessor noted inter alia the following:
Mrs Davidson indicated that she has difficulty with mobilisation, walking for only 200-250 metres before she requires rest, is unable to squat or kneel, has significant difficulty negotiating stairs, is able to stand for 5-10 minutes only, has difficulty standing from a seated position, is unable to walk around the shopping centre to do her shopping…she does basic tidying in the house… and requires rest in the afternoon with her legs elevated to decrease the swelling in the right ankle.
The assessor considered that Ms Davidson suffered a moderate functional impact on activities requiring the use of lower limbs and recommended a rating of 10 points under Impairment Table 3.
An MRI of both knees performed on 11 April 2014 is reported as showing “the patellofemoral joints both show some minor mal tracking and slight joint space reduction of the lateral facet on the left side” but no other abnormalities.
In his undated report, Dr Awujo listed “chronic right knee, chronic left knee pain” as medical conditions that are generally well managed and that cause minimal or limited impact but provides no other details.
In the JCA report of 2 April 2015 the assessor noted, inter alia, the following:
Sonya [sic] reported that she is only able to climb stairs one at a time …is unable to kneel…walking tolerance depends on pain levels at the time…can go shopping alone to get smaller items…some days the pain in her knees is worse than others…is unable to do any gardening due to this condition.
The assessor considered that Ms Davidson lower limb condition was not fully diagnosed treated or stabilised so that a rating under the Impairment Tables could not be applied.
Ms Davidson told the SSAT, inter alia, the following:
…she has constant pain in her knees…is able to stand for about 10 minutes …finds herself unstable and wobbling when she walks…she has had several falls…she had a walking stick but using it was difficult because it made her arm worse…her right knee gives way …she can manage walking about 200 metres…she can manage walking around the supermarket on some days.
Conclusion
In my view, the medical evidence with respect to Ms Davidson’s lower limb function can best be described as incomplete, does not provide a satisfactory explanation for the claimed severity of her impairment and suggests that, during the claim period, the cause of her lower limb impairment was not fully diagnosed, fully treated and fully stabilised.
Even if I were to accept that, during the claim period, the “knee conditions” were permanent for the purposes of the Impairment Determination, I am not satisfied that there is sufficient corroborative evidence to allow for a reasonable assessment of the functional impact on activities using lower limbs at that time.
Furthermore, on acceptance of the available evidence and due consideration of the descriptors in Impairment Table 3 I am satisfied that, during the claim period, Ms Davidson did not suffer a “severe” functional impact on activities using lower limbs.
Impairment Table 4 – Spinal Function
In his report of 13 December 2012, Dr Nachiappan listed “cervical bulging discs” as a medical condition that is generally well managed and that causes minimal or limited impact.
In the JCA report of 21 December 2012, the assessor noted that Mrs Davidson indicated that “she experiences some difficulty with cervical movement, and at times experiences headaches related to neck pain”.
The assessor deemed that for purposes of the report Ms Davidson’s cervical spine condition was “permanent but not FDTS [fully diagnosed, treated and stabilised] due to limited information”.
In his undated report, Dr Awujo listed “chronic neck pain & cervical disc bulges” as a medical condition that has significant functional impact, noted current symptoms as “constant neck pain, headaches, pins and needles sensation worse in the right hand” and describes impact on ability to function as “difficulty and pain when lying down to sleep, hence poor sleep, reduced neck movements, poor concentration”.
In the JCA report of 2 April 2015 the assessor noted, inter alia, the following:
Today Sonya demonstrated an almost full range of movement of her neck…but she said that it was painful…Sonya said she can persist at driving for 30 minutes.
The assessor considered that Ms Davidson suffered a mild functional impact on activities involving spinal function and recommended a rating of five points under Impairment Table 4.
Ms Davidson told the SSAT that
her neck has a huge impact on her function. She is not sleeping well and is up most of the night with pain at the base of her head and in her neck. Looking up is painful. She cannot look over either shoulder and is more restricted on the left. She uses the mirrors to drive the car.
Conclusion
I accept that, during the claim period, Ms Davidson’s cervical spine condition was permanent for the purposes of the Impairment Determination.
Although there is little corroborative evidence, I accept that the available evidence supports a conclusion that, during the claim period, there was a moderate impact of activities involving spinal function.
However, on due consideration of the available evidence and the descriptors in Impairment Table 4, I am satisfied that, during the claim period, Ms Davidson did not suffer a “severe” functional impact on activities involving spinal function.
DECISION
For reasons set out above I am satisfied that, during the claim period, Ms Davidson did not suffer a “severe impairment” as defined in s 94(3B) of the Act as a result of any of her claimed medical conditions which means that, due to the fact that she has not completed a POS, she could not satisfy the requirements of section 94(1)(c) of the Act and did not qualify for DSP.
The decision under review is affirmed.
I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member ......................[sgd]..................................................
Associate
Dated 29 March 2016
Date(s) of hearing 16 March 2016 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Eligibility
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Disability Benefits
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Impairment Rating
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Medical Evidence
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Functional Impact
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