Donna Salangsang and Secretary, Department of Social Services
[2013] AATA 856
[2013] AATA 856
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/2615
Re
Donna Salangsang
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 2 December 2013 Place Brisbane The Tribunal affirms the decision under review.
......................[Sgd]..................................................
Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Physical and psychiatric impairment – Impairment Tables – Evidence of conditions being fully diagnosed, treated, stabilised and permanent – Overall impairment rating of 20 points – No rating of 20 points from any one Table – No severe impairment – Program of support not undertaken – Qualifying requirements for disability support pension not met during the relevant period – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 26, 27, 94
Social Security (Administration) Act 1999 (Cth) ss 13, Sch 2
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 63
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Guide to Social Security Law s 3.6.3.20
REASONS FOR DECISION
Mr R G Kenny, Senior Member
2 December 2013
BACKGROUND
After contacting Centrelink on 11 December 2012 about the disability support pension (“DSP”), Ms Donna Salangsang lodged a claim for that social security payment, under the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”), on 20 December 2012. After a consideration of Ms Salangsang’s circumstances, her claim was rejected by Centrelink on 7 February 2013. That decision was affirmed by an authorised review officer from Centrelink on 27 February 2013 and, in turn, by the Social Security Appeals Tribunal on 2 May 2013.
LEGISLATION, ISSUES AND SUBMISSIONS
The qualifications for DSP are set out in s 94 of the Act. It is common ground that Ms Salangsang meets the age and residency requirements of that provision and has a physical impairment in relation to a spinal condition, a right upper arm condition and a psychiatric condition. The remaining requirements in s 94 of the Act, and the matters in issue, are:
·whether Ms Salangsang has an impairment rating of 20 points or more which is calculated under the Impairment Tables[1] in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”) as required by s 94(1)(b) of the Act; and, if so
·whether she has a continuing inability to work as required by s 94(1)(c)(i) of the Act.
[1] See ss 26 and 27 of the Act.
To qualify for DSP, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period 13 weeks from the day of the claim.[2] As Ms Salangsang’s formal claim was made with 14 days of her initial contact with Centrelink, the claim may be taken to have been made on 11 December 2012.[3]
[2] See Sch 2 cl 3 and cl 4 of the Administration Act.
[3] See s 13 of the Administration Act.
The requirements to be followed in applying the Impairment Tables are set out in Pt 2 s 6 of the Determination which is headed Rules for applying the Impairment Tables (“the Rules”). That section reads:
6 Applying the Tables
Assessing functional capacity
(1) 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.
Applying the Tables
(2) The 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.
Note: For additional information that must be taken into account in applying the Tables see section 7.
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
Note: For permanent see subsection 6(4).
(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.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
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
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(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.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Impairment has no functional impact
(8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Mr Ashley Burgess, for the respondent, conceded that Ms Salangsang’s spinal and upper limb conditions are such as to attract ratings of 10 points each under Tables 4 and 2, respectively, of the Impairment Tables. However, he submitted that no rating should be allocated for her psychiatric condition on the basis that, although fully diagnosed, it was not fully treated and stabilised during the relevant period and, therefore, not permanent. Mr Burgess submitted that the Tribunal would be unable to determine that Ms Salangsang had a continuing inability to work as required by s 94(1)(c)(i) of the Act because she has not undertaken a program of support.
EVIDENCE
Ms Salangsang
In her evidence, Ms Salangsang agreed that she suffered from depression as well as neck and arm conditions. She has not undertaken any formal treatment, including medication, for depression and does not intend to in future. She would prefer that the matter be allowed to improve with the passage of time. With her orthopaedic conditions, she described many limitations on her activities of daily living because of pain in her spine and associated pain radiating down her right arm. She is not limited in the use of her left arm and hand but is awkward as she is right hand dominant. She is able to use a computer but not for long periods. For example, she is unable to sit or stand in one place for more than 20 minutes without experiencing pain. She able to use a pen to complete a page of writing but would experience numbness of the right arm and hand after that time. She is able to drive her car for about 10 minutes before experiencing upper limb and spinal pain and is able to turn pages of a book when reading but would need to have her neck supported to do so for an extended period. Ms Salangsang avoids tasks involving overhead activity because of her spinal condition but is able to bend and lift items from table height.
Ms Salangsang agreed that she has not completed a program of support but had been interviewed in relation to doing so in October 2013. She felt that she would be unable to participate in such a program because she had been advised that she would need to be able to agree to undertaking 15 hours of work per week and believed that this was beyond her present capacity.
Dr Ashley White
Ms Salangsang’s treating doctor, Dr White, completed reports pertaining to the relevant period dated 20 December 2012 and 15 February 2013. In his first report,[4] he identified ongoing neck, shoulder and back pain, and headaches with interference in activities of daily living. Apart from occasional “trigger point injections”, no other treatment was planned for the condition. He also identified depression for which Ms Salangsang was receiving counselling and which caused low motivation, endurance and concentration, and an inability to work. His opinion was that each of those conditions was expected to persist for more than two years. In his second report,[5] Dr White identified neck pain with referred pain to Ms Salangsang’s right arm as well as “depression-adjustment disorder with depressed mood”. He described moderate to severe ongoing pain in the neck, with daily headaches and pain, numbness and pins and needles. His opinion was that her conditions caused trouble in concentrating and driving with effects on all aspects of her life. He also considered that the condition was fully treated and stable with no improvement expected. Dr White considered that Ms Salangsang’s psychiatric condition was fully treated, stable and expected to persist for more than two years. His opinion was that she experiences a depressed mood which impacts on her capacity to do physical things.
[4] Exhibit 1, pp. 108-118.
[5] Exhibit 1, pp. 125-135.
On 17 October 2013, Dr White completed a further report.[6] He described Ms Salangsang as taking a very mild dosage of antidepressant medication and noted that she has declined to take more effective medication. His opinion was that her functioning over the next 24 months was uncertain but could improve with appropriate medication and by seeing a psychiatrist. For Ms Salangsang’s orthopaedic conditions, his opinion was that she could benefit from participation in rehabilitation programs.
[6] Exhibit 3.
Dr Malcolm Wallace
Orthopaedic surgeon, Dr Wallace, completed a report on 14 July 2011.[7] He identified impairment in Ms Salangsang’s cervical and thoracic spine as well as a psychological injury.
[7] Exhibit 1, pp. 71-73.
Dr Axel Estensen
Dr Estensen, psychiatrist, completed a report on 22 September 2011.[8] He diagnosed major depressive episode (moderate severity) which would benefit from psychiatric treatment due to the duration of her symptoms and the interaction between the pain she experienced from her physical disabilities. His opinion was that she would benefit from antidepressant therapy. Dr Estensen considered that her prognosis was guarded, noting that she had a lengthy period of symptoms with little improvement with the passage of time.
[8] Exhibit 1, pp. 74-94.
Dr John Chalk
In his report, dated 15 December 2011,[9] psychiatrist Dr Chalk concluded that
Ms Salangsang was suffering from an adjustment disorder rather than a depressive disorder. His opinion was that the condition was not “permanent, stable or stationary” and one for which she would be significantly assisted by psychiatric treatment. Dr Chalk expected that this would lead to significant diminution of her level of symptomology and impairment.
[9] Exhibit 1, pp. 95-107.
Job Capacity Assessment (“JCA”) report
A JCA report was completed on 24 January 2013.[10] In relation to Ms Salangsang’s psychiatric state, the reporter noted the reports of Dr Estensen and Dr Chalk and concluded that Ms Salangsang’s fully diagnosed condition was depression. Her opinion was that the condition was not optimally treated or stabilised as she had not undergone any form of psychological intervention such as adjustment to illness strategies, pain management techniques or cognitive therapies. She considered that such intervention would result in improvement.
[10] Exhibit 1, pp. 119-124.
For Ms Salangsang’s musculoskeletal conditions, the reporter noted the report of
Dr Wallace. Her opinion was that these conditions, while diagnosed, were not optimally treated or stabilised. She considered that such intervention would result in improvement in her symptoms.
The reporter’s recommendation was that no ratings should be allocated under the Impairment Tables.
In relation to employment, the reporter recorded a work history in banking, office duties, reception and computer administration but with no work since 2006. She noted that
Ms Salangsang had completed a Bachelor degree in Urban and Regional Planning while working, for 14 years, with a local council. The reporter’s opinion was that
Ms Salangsang’s conditions had a low impact on her ability to work, obtain work or look for work.
A further JCA report was completed on 31 October 2013,[11] well after the relevant period. Therein, the assessor again concluded that none of Ms Salangsang’s conditions were fully treated or stabilised and that no rating could be recommended under the impairment tables.
CONSIDERATION
[11] Exhibit 5.
Impairment
As noted above,[12] the requirements to be followed in applying the Impairment Tables are set out in s 6 of the Rules. There is evidence that none of Ms Salangsang’s conditions have been fully diagnosed, treated and stabilised and, as such, are not permanent for the purposes of allocating ratings under the Impairment Tables. Certainly, I am satisfied that such is the case with her psychiatric condition. Nonetheless, I have considered the ratings suggested by Mr Burgess for the orthopaedic conditions under Tables 2 and 4 of the Impairment Tables. These read:
The Table 2 – Upper Limb Function
[12] See Para 4 (above).
Points
Descriptors
0
There is no functional impact on activities using hands or arms.
(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
5
There is a mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
10
There is a moderate functional impact on activities using hands or arms.
(1) The person has difficulty with most of the following:
(a) picking up a 1 litre carton full of liquid;
(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box)
(c) holding and using a pen or pencil;
(d) doing up buttons or tying shoelaces;
(e) using a standard computer keyboard;
(f) unscrewing a lid on a soft-drink bottle.
20
There is a severe functional impact on activities using hands or arms.
(1) Most of the following apply to the person:
(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c) the person has difficulty using a computer keyboard despite appropriate adaptations;
(d) the person has severe difficulty using a pen or pencil;
(e) the person has severe difficulty turning the pages of a book without assistance.
30
There is an extreme functional impact on activities using hands or arms.
(1) The person is unable to perform any activities requiring the use of both hands or both arms.
Table 4 – Spinal Function
Points
Descriptors
0
There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
10
There is a moderate functional impact on activities involving spinal function.
(1)The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
30
There is an extreme functional impact on activities involving spinal function.
(1) The person is:
(a) completely unable to perform activities involving spinal function; or
(b) unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).
Under Table 2, Ms Salangsang does not satisfy paragraphs (a), (d) or (e) at the 20 points level. This is three of the five factors and, therefore, more than half of them.[13] Under Table 4, she does not satisfy any of the descriptors at the 20 points level. However, I am satisfied that her circumstance would equate to the 10 point level on each of the Tables.
It follows that she would meet the 20 points of impairment required under s 94(1)(b) of the Act if her orthopaedic conditions could be considered permanent for the purposes of allocating ratings under the Impairment Tables.
[13] See the Guide to Social Security Law s 3.6.3.20 which provides: “Where the descriptor refers to most of the following, most is taken to be more than half”. For use of the Guide, see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.
Continuing inability to work
For continuing inability to work in Ms Salangsang’s case, the relevant part of s 94 of the Act reads:
94(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)—the person has actively participated in a program of support within the meaning of subsection (3C); …
(3B) 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.
…
(3C) 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 this subsection.
…
(5) In this section:
program of support means a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
Ms Salangsang has no impairment of 20 points or more from any one of the Impairment Tables and, therefore, she does not have a severe impairment. In that case, she is required to have completed a program of support. It is not in dispute that Ms Salangsang had not done so as at the start of or during the relevant period. In that situation, she fails to satisfy the work test in s 94(1)(c) of the Act.
I am satisfied that, in the relevant period, Ms Salangsang did not meet the qualification requirements for DSP in s 94 of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ........................[Sgd]................................................
Associate
Dated 2 December 2013
Date of hearing 12 November 2013 Applicant In person Solicitor for the Respondent Mr Ashley Burgess, Departmental Advocate
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