Dianne Ellis and Secretary, Department of Social Services
[2014] AATA 509
•18 July 2014
[2014] AATA 509
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5836
Re
Dianne Ellis
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Member J Chaney
Date 18 July 2014 Place Perth The Tribunal affirms the decision under review.
..(Sgd) J Chaney..............
Member J Chaney
CATCHWORDS
SOCIAL SECURITY - Claim for Disability Support Pension - Whether Applicant has any Impairments - Whether Impairments attract 20 points under the Impairment Tables - Whether the Applicant has a Continuing Inability to Work
LEGISLATION
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999
CASES
Drake v Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634
REASONS FOR DECISION
Member J Chaney
18 July 2014
INTRODUCTION
The Applicant in this matter was in receipt of Disability Support Pension (DSP) from March 2003 until April 2012, when her DSP was cancelled due to her partner receiving compensation income.
The Applicant lodged a fresh claim for DSP on 9 July 2012. This claim was rejected on 31 August 2012 on the basis that the Applicant did not have 20 or more points under the Impairment Tables.
The Applicant applied for internal review of the decision to Centrelink. On 25 September 2012, A Centrelink Authorised Review Officer (ARO) affirmed the decision to reject the Applicant’s claim for DSP.
On 2 October 2012, the Applicant then applied to the Social Security Appeals Tribunal (SSAT) for review of the ARO’s decision. On 29 October 2012, the SSAT affirmed that ARO’s decision to reject the Applicant’s claim for DSP.
The Applicant applied for review of the SSAT’s decision to this Tribunal on 21 December 2012.
THE RELEVANT LEGISLATION
The conditions which must be satisfied before a person is qualified for DSP are set out in s 94 of the Social Security Act 1991 (the Act). The section relevantly provides:
(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;
…
The impairment tables referred to in s 94(1)(b) are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (IT Determination).
Section 6 of the IT Determination provides, in part, as follows:
…
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised 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 2 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 2 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.
…
The Social Security (Administration) Act 1999 (the Administration Act) provides that the start date for DSP is the date that the claim is made (see ss 41, 42 and Sch 2 cl 3). Schedule 2, clause 4(1) further provides:
(1) If:
(a) a person … makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) … the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period; the claim is taken to be made on the first day on which the person is qualified for the social security payment.
THE ISSUES
The issues before this Tribunal are:
(a)Whether the Applicant has any Impairments;
(b)Whether these impairments attract at least 20 points under the impairment tables; and
(c)Whether the Applicant has a continuing inability to work.
These issues must be assessed from 9 July 2012 until on or about 8 October 2012 (the Relevant Period).
THE EVIDENCE
The evidence before the Tribunal consisted of:
(a)The Section 37 Documents;
(b)Medical documents and submissions submitted by the Applicant; and
(c)Written submissions submitted on behalf of the Respondent.
The Tribunal heard oral submissions from both parties.
THE APPLICANT’S EVIDENCE
Ms Ellis told the Tribunal that she was currently bedridden, having just been discharged from hospital where she had undergone surgery. She had been diagnosed with Crohn’s disease last year and commenced taking Salazopyrin. She was due to have a further colonoscopy later in the year to assess her progress. Ms Ellis stated that she suffered from constant bouts of diarrhoea and was often incontinent. Her condition had deteriorated over the past year. She had previously been on the disability support pension for irritable bowel syndrome and couldn’t understand why her latest application had been rejected.
In relation to her back pain, Ms Ellis stated that she had had tests in the past including MRI and in Dr Wu had referred her to a pain specialist. Because she had been so ill with her bowel condition she had not seen a physiotherapist or undergone further injections into her spine. Her other conditions of diabetes, hypertension and were also not an issue when compared with her Crohn’s disease.
Ms Ellis understood that the AAT could only look at medical evidence relating to her conditions as they were between July and October 2012. She stated that it wasn’t fair as her health had deteriorated since. She understood that she could make a fresh application and lodge up to date medical reports.
THE RESPONDENT’S SUBMISSIONS
The Respondent submitted that Dr Wu, in his reports date 28 July 2012 and 10 September 2012, advised that further treatment was required for the Applicant’s lumbar spine condition, this included referral to a pain management specialist. The Respondent accordingly submits that the Applicant’s lumbar spine condition cannot be fully diagnosed, treated and stabilised.
The Respondent notes that in relation to the Applicant’s gastrointestinal condition, Dr Wu indicated that there is no further treatment for the Applicant to receive in relation to this condition. However, the Respondent submits that this condition cannot be fully treated and stabilised, given the Applicant was due to have a follow up colonoscopy in six months (at the time of the SSAT hearing). Further, the Respondent conceded that, if the Tribunal find the condition to be fully treated and stabilised, that the condition should attracted 5 points under Table 13 of the Impairment Tables.
In relation to the Applicant’s diabetes and hypertension the Respondent draws the Tribunal to Dr Wu’s reports which state that these conditions are likely to significantly improve with medication and that they have limited impact on the Applicant’s functional capacity. The Respondent contend that this condition attracts 0 or alternatively 5 points under the Impairment Tables.
ANALYSIS
The Tribunal finds that the Applicant has several impairments, namely osteoarthritis of the lumbar spine, a gastrointestinal condition, type II diabetes and hypertension. The Applicant satisfies s 94(1)(a) of the Act.
The Tribunal finds that there is no medical evidence from during the Relevant Period that state that the Applicant currently suffers from endometriosis. The Tribunal is hence unable to find that endometriosis satisfies s 94(1)(a) of the Act.
As detailed above, for any of these impairments to be assigned an impairment rating under the IT Determination, these impairments must be permanent meaning that they need be fully diagnosed, treated, stabilised and more likely than not to persist for more than two years. There must be corroborating medical evidence to establish that a condition is fully diagnosed and fully treated. In its analysis the Tribunal was only able to consider medical evidence from during the Relevant Period, this limited the Tribunal to the medical reports of Dr Wu dated 28 June 2012 and 10 September 2012, and the Job Capacity Assessment Report dated 13 August 2012.
Osteoarthritis
The Tribunal notes that Dr Wu in his reports, dated 28 June 2012 and 10 September 2012, state that the Applicant’s lumbar spine condition was diagnosed in 2009, was expected to persist for more than 24 months but that future treatment involved seeing a pain specialist. The JCA Report dated 13 August 2012 noted the lack of neurosurgical or other specialist reports.
The Tribunal finds that during the Relevant Period there is inadequate medical evidence to conclude that the Applicant’s spinal condition was fully treated and stabilised. Accordingly, the Tribunal cannot assign an impairment rating to this condition.
Gastrointestinal Condition
The Tribunal notes that in Dr Wu’s reports, dated 28 June 2012 and 10 September 2012, it is states that this condition was diagnosed in 2006 and was expected to persist for more than 24 months, however it would likely fluctuate. The JCA Report, dated 13 August 2012, stated that due to a lack of specialist report and treatment the condition could not be considered to be fully diagnosed, treated and stabilised.
At the SSAT hearing the Applicant gave evidence that she was to have a follow up colonoscopy in six months’ time.
The Tribunal finds that, in relation to the Applicant’s gastrointestinal condition, there is a lack of specialist evidence from during the relevant period and that further treatment was available, and required, during the Relevant Period. The Tribunal finds that the condition was not fully diagnosed, treated and stabilised during the Relevant Period and cannot be assigned an impairment rating under the Impairment Tables.
Diabetes and Hypertension
In Dr Wu’s reports, dated 28 June 2012 and 10 September 2012, these conditions were stated to be of limited functional impact and that significant improvement was expected. The JCA Report dated 13 August 2012 stated that these conditions were temporary.
The Tribunal accepts that these conditions are fully diagnosed, treated and stabilised. However, the Tribunal finds that these conditions are likely to improve significantly with proper medication. Further, the Tribunal finds that these conditions have minimal impact on the Applicant’s ability to function. These conditions can only be assigned an impairment rating of 0 points under the Impairment Tables.
CONCLUSION
The Applicant cannot be assigned 20 points under the Impairment tables, in respect of her medical conditions. The Applicant does not satisfy s 94(1)(b) of the Act. It is hence not necessary for the Tribunal to consider s 94(1)(c) of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Member J Chaney ....(Sgd) T Freeman.......................
Associate
Dated 18 July 2014
Date of hearing 20 February 2014 Applicant In person Representative for the Respondent Ms L Gallagher Solicitors for the Respondent Sparke Helmore
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