Elizabeth Rose Bennett and Secretary, Department of Social Services

[2013] AATA 728

[2013] AATA 728 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1342
Re	Elizabeth Rose Bennett
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham (Senior Member)
Date	10 October 2013
Place	Hobart

The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Ms A F Cunningham (Senior Member)

SOCIAL SECURITY - disability support pension - conditions of depression, back condition, diabetes, foot/calf condition, tenosynovitis wrist, obesity and neutrophilia, thrombocytosis and anaemia - 20 point impairment rating not satisfied - decision under review affirmed

Social Security Act 1991, ss 23, 26(1), (3), 94(1), (2), (3A), (3B), (3C), (5)

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

REASONS FOR DECISION

Ms A F Cunningham (Senior Member)

10 October 2013

1. The applicant, Elizabeth Bennett seeks the review of a decision of the Social Security Appeals Tribunal (SSAT) which affirmed Centrelink’s decision not to grant her claim for disability support pension (DSP).

2. Ms Bennett’s claim for DSP was made on 18 May 2012 and was refused on the basis that her conditions did not attract the required 20 points under the Impairment Tables, and nor did she meet the continuing inability to work provisions of the legislation. This decision made by a Centrelink officer, was affirmed by an Authorised Review Officer (ARO) on 13 December 2012 and by the SSAT on 5 February 2013.

3. Ms Bennett appeared on her own behalf at the hearing and gave oral evidence. Brian Sparkes appeared on behalf of the Secretary and tendered the T Documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. It was Ms Bennett’s contention that her condition of major depression should have attracted impairment points. The SSAT had found that this condition was not fully treated and stabilised and therefore was not eligible for an impairment rating under the Impairment Tables. Mr Sparkes accepted that there is medical evidence supporting a diagnosis of major depression, however submitted that the condition is not permanent in that the evidence does not indicate that the condition is fully treated and stabilised and more likely than not to persist for more than two years.

4. Neither the ARO in affirming the decision not to grant DSP, or the SSAT went on to consider the question of whether the applicant had a continuing inability to work (CITW), as the threshold requirement of 20 points had not been satisfied.

5. The issues for the Tribunal to determine are firstly, whether Ms Bennett’s conditions attracted an impairment rating of at least 20 points under the Impairment Tables; and if so secondly, whether she has a continuing inability to work.

   LEGISLATION

6. The qualification provisions for DSP are contained in section 94 of the Social Security Act 1991 and particularly in subsection (1) which reads as follows:

   “(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;

   (ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

   (d)       the person has turned 16; and

   (da)     in a case where the following apply:

   (i)        the person is under 35 years of age;

   (ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;

   (iii)      if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;

   the person meets any participation requirements that apply to the person under section 94A; and

   (e)       the person either:

   (i)        is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)       has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)      is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A)      is not an Australian resident; and

   (B)      is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident; and

   (ea)     one of the following applies:

   (i)        the person is an Australian resident;

   (ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii)       the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

   Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

   Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27”.

7. The provisions with respect to “continuing inability to work” are contained in subsection (2) which provides:

   “(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); and

   (a)       in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)       in all cases—either:

   (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)       if the impairment does not prevent the person from undertaking a training activity—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.

   Note:    For work see subsection (5)”.

8. Also of relevance are subsection (3):

   “(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

   (a)       the availability to the person of a training activity; or

   (b)the availability to the person of work in the person’s locally accessible labour market.

   (3A)     If:

   (a)       a person is receiving disability support pension; and

   (b)the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;

   then paragraph (2)(aa) of this section does not apply in relation to that assessment.

   Severe impairment

   (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.

   Example 1:      A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

   Example 2:      A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

   Example 3:      A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

   Active participation in a program of support

   (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”.

9. "Work" is defined in subsection (5) as:

   “work means work:

   (a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

   (b)that exists in Australia, even if not within the person’s locally accessible labour market”.

10. The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 include the Rules for applying the Impairment Tables and Tables 1 to 15.

11. The requirements set out in subsection 94(1) are conjunctive and a failure to satisfy any one means that a person does not qualify for DSP. It was conceded by the Secretary that Ms Bennett satisfies the provisions of subparagraph (a), (d) and (e) but does not meet the requirements of subparagraph (b) and (c) which concern an impairment rating of 20 points or more and a continuing inability to work.

    IMPAIRMENT RATING

12. Subsection 94(1)(b) of the Act provides that to qualify for DSP a person must have an impairment rating of at least 20 points under the Impairment Tables.

13. Section 23 of the Act provides that Impairment Tables mean the Tables determined by an Instrument under subsection 26(1) of the Act. The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Determination) is the legislative Instrument determined pursuant to subsection 26(3) of the Act. The Tables are provided in Part 3 of the Determination and the rules for applying the Tables are contained in Part 2.

14. The application provisions for the Impairment Tables state in clause 6 of Part 2 that an impairment rating can only be assigned if the person's condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.  The example given is a condition that may last for more than two years but if the impairment resulting from the condition is likely to improve or cease within two years, an impairment rating under the Tables cannot be assigned to the impairment.

15. A condition is assessed as permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, the condition has been fully treated, has been fully stabilised and is more likely than not, in light of available evidence to persist for more than two years. (Clause 6(4)).

16. Subclause 6(5) provides that in determining whether a condition has been fully diagnosed consideration is to be given to corroborating evidence and what treatment or rehabilitation has occurred and whether treatment is continuing or is planned in the next two years.

17. Subclause 6(6) sets out the considerations for assessment as to whether a condition is fully stabilised namely:  whether the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvements to a level enabling the person to undertake work in the next two years; or the person has not undertaken reasonable treatment for the condition and either significant functional improvement to a level enabling the person to undertake work in the next two years is not expected even if the person undertakes reasonable treatment; or there is a medical or other compelling reason for the person not to undertake reasonable treatment. “Reasonable treatment” is defined in subsection (7).  Subsection (8) provides that the presence of the diagnosed condition does not necessarily mean that there will be an impairment rating assigned.

18. The relevant qualification period as prescribed by the Administration Act is 13 weeks from the date of the claim which is dated 18 May 2012.

    EVIDENCE

19. In Ms Bennett’s Claim for DSP she listed her disabilities as: major depression, back injury, tendinitis, plantar fasciitis, pronate M.E, insomnia and diabetes.

20. Dr Waugh’s report of 18 May 2012 which accompanied Ms Bennett’s application for DSP, listed the following conditions; insulin dependent diabetes mellitus Type 2, lumbar spine degeneration, major depression, tenosynovitis of wrists and Achilles tendon and plantar fasciitis both feet, myalgia encephalitic myelitis, anaemia and neutrophilia and obstructive sleep apnoea. Dr Waugh indicated that myalgia encephalitic myelitis, anaemia and neutrophilia and obstructive sleep apnoea were generally well managed and caused limited or minimal impact on Ms Bennett’s ability to function. In a further medical report dated 4 May 2012 Dr Waugh included the condition of reactive depression with chronic fatigue, NIDDM and Achilles tendonitis. The medical certificate completed by Dr Waugh on 9 October 2012 included the condition of morbid obesity. The Job Capacity Assessment (JCA) report dated 17 October 2011 reports on the following conditions;  depression, chronic fatigue syndrome, gall bladder disorders, immunodeficiency, spinal disorder, diabetes – insulin dependent, respiratory disorder, musculo-skeletal disorder and lower limb deficiencies.

21. Included in the T Documents was a report from Andrew McClymont, psychologist dated 20 May 2012. Mr McClymont was treating Ms Bennett for severe bouts of anger, major depression, generalised anxiety and elevated stress which he considered were exacerbated by a range of chronic physical health problems. He advised that Ms Bennett would be attending his service on a monthly basis to implement CBT/ACT/IPT with the focus of improving her health and that she also has regular appointments with her GP. Mr McClymont stated that he supported Ms Bennett’s application for DSP due to the chronic nature of the psychological issues outlined.

22. On 3 December 2012 Dr Ross Kirkman, consultant psychiatrist who was treating Ms Bennett, reported a diagnosis of major depression with planned treatment as increasing her medication of Cymbalta “back to 180mg”. He went on to state that if she improved but remained symptomatic and needed the dosage increased to 240mg, he should review. He stated in his report:

    “I have instructed for her to get up at a regular time and get showered and go for a stroll to help set her body clock.

    I would encourage her to return to the workforce as at 45 she would be very disadvantaged if she didn’t attempt this.

    I wouldn’t regard her mood as a permanent disability but I can’t comment on other physical disabilities”.

    FINDINGS

23. The Tribunal is satisfied that Ms Bennett suffers from a number of serious medical conditions namely those reported in Dr Waugh’s medical reports of 18 May 2012 and 9 October 2012. These medical conditions constitute either physical or psychiatric impairments within the meaning of subsection 94(1)(a) of the Act. Subsection 94(1)(b) requires that the persons impairment attract a rating of 20 points or more under the Impairment Tables.  As outlined above, in order to attract an impairment rating the person must be suffering from a permanent condition and the impairment that results from the condition is more likely than not, to persist for more than two years. The first requirement is that the condition must be fully diagnosed by an appropriately qualified medical practitioner.

24. Each of Ms Bennett’s conditions is considered separately as follows:

    Depression

    The history of this condition is outlined in the decision of the SSAT at paragraph 15-19 and is consistent with much of the evidence provided to this Tribunal. The SSAT considered that as Ms Bennett’s depressive condition was still under review as at 3 December 2012 by a psychiatrist who recommended an increase in the dose of her medication which had resulted in some improvement, her condition could not be considered fully treated and stabilised such as to attract an impairment rating.

25. Ms Bennett said that she had suffered from depression for a number of years and had been treated with both medication and counselling. The JCA report stated that Ms Bennett had reported that her condition had been diagnosed in October 2007 and that medical treatment had “assisted her to somewhat manage her symptoms”. The JCA reported that as at the date of the report namely 7 June 2012, Ms Bennett had not been referred to a clinical psychologist or psychiatrist and therefore “as per policy, her condition cannot be considered fully diagnosed.”

26. Dr Ross Kirkman, consultant psychiatrist, identified Ms Bennett’s depression as Axis 1 - Major Depression in his report dated 3 December 2012.  Prior to that, Ms Bennett’s condition had been diagnosed by her general practitioner who had been treating her with medication. This medication included Cymbalta which Dr Kirkman confirmed was appropriate and recommended increasing the dose. On the basis of Dr Kirkman’s report, the Tribunal is satisfied that Ms Bennett’s depressive condition had been appropriately diagnosed and was being treated by her general practitioner at the time of her claim for DSP.

27. The Tribunal agrees with the findings of the SSAT however as set out in paragraphs 15 to 20, that during the qualification period Ms Bennett’s depressive condition could not be considered to have been either fully treated or stabilised such as to be considered permanent and therefore attract an impairment rating.

    Back condition

28. The applicant’s spinal disorder and musculo-skeletal disorder conditions were accepted by both the JCA and the ARO as permanent conditions and each assessed as attracting five points under the impairment tables. The SSAT however did not accept that Ms Bennett’s back condition could be regarded as fully and optimally treated or stabilised as at the time of the claim or within 13 weeks thereafter, and therefore determined that no impairment rating could be assigned for the condition. The SSAT’s reasoning was that Ms Bennett had only ever had one session of physiotherapy and had not been reviewed by a specialist. In such circumstances the SSAT concluded that Ms Bennett’s back condition could not be regarded as fully and optimally treated or stabilised and therefore not permanent for the purposes of an impairment rating.

29. Dr Waugh’s medical report of 18 May 2012 diagnosed lumbar spine degeneration which was currently treated with medication and avoiding distressing situations. Past treatment included physiotherapy and medication. With respect to future treatment Dr Waugh  stated that only surgery would stabilise but would not cure the condition. There is evidence that Ms Bennett has had numerous x-rays and CT scans as well as treatment by way of a facet block injection which was presumably undertaken by an appropriately qualified medical practitioner. Dr Waugh stated that the date of onset of the condition was 1985. In the circumstances the Tribunal is satisfied that the condition is permanent such as to attract an impairment rating.

30. The appropriate Impairment Table is Table 4 - Spinal Function. For the reasons identified in the JCA report at T8 page 63, and after consideration of Ms Bennett’s evidence given at the appeal hearing and observing her during the course of giving her evidence, the Tribunal agrees with the impairment rating of 5 points. The evidence did not support an assessment of 10 points which requires moderate functional impact on activities and either an inability to sustain overhead activities; or difficulty moving the head to look in all directions for example over the shoulder; or inability to bend forward to pick up a light object placed at the height; or requiring assistance to get up out of a chair.

    Diabetes

31. This condition was diagnosed in 1997 as insulin-dependent diabetes myelitis type 2 and accepted as a permanent condition as at the date of Ms Bennett’s claim for DSP.  The JCA reported that whilst Ms Bennett stated that her condition was relatively stable, she reported occasional symptoms of fatigue which could impact negatively on her ability to complete physically active tasks. In her evidence before the Tribunal Ms Bennett described the day-to-day activities which cause her some difficulty. The JCA assessed an impairment rating of 5 points under Table 1 – Functions Requiring Physical Exertion and Stamina, which accords with the evidence and is accepted by the Tribunal.

    Foot/calf condition

1. Ms Bennett’s evidence to the Tribunal regarding this condition is consistent with that outlined by the SSAT in its decision. Both the JCA and the SSAT assessed this condition as attracting an impairment rating of 5 points under Table 3 - Lower Limb Function which describes a mild functional impact on activities using lower limbs. The functional impact for an impairment rating of 10 points refers to a person who either requires the use of a wheelchair or walking aids, for instance a quad stick, crutches or walking frame, which does not accord with Ms Bennett’s current circumstances.

   Tenosynovitis wrist

2. Ms Bennett did not challenge the findings of the SSAT regarding this condition and provided no additional evidence. On the basis of the documented evidence and in the absence of evidence regarding impact on function, the Tribunal considers that a nil impairment rating under Table 1 is appropriate.

   Neutrophilia, Thrombocytosis and anaemia

3. Ms Bennett did not challenge the findings of the SSAT with respect to these conditions and provided no additional evidence. On the basis of the documented evidence and in the absence of evidence regarding impact on function, the Tribunal considers that a nil impairment rating under Table 1 of the Impairment Tables is appropriate.

   Obesity

4. Again Ms Bennett did not challenge the findings of the SSAT with respect to this condition. For the reasons outlined at paragraphs 39 to 42 of the SSAT’s decision and on the basis of the documented evidence before the Tribunal, the Tribunal accepts the findings of the SSAT and the assessment of 5 points under Table 1 for this condition.

   Sleep apnoea, gall bladder

5. In the absence of any additional evidence, the Tribunal agrees with the findings of the SSAT that the evidence does not show that these conditions have been fully investigated, diagnosed, treated and stabilised. No impairment rating can therefore be assigned to these conditions.

   CONCLUSION

6. In summary, the Tribunal has assessed the impairment ratings for Ms Bennett’s conditions as follows: back condition – 5 points under Table 4; diabetes – 5 points under Table 1; foot/calf condition – 5 points under Table 3; obesity – 5 points under Table 1. However Ms Bennett’s combined impairment rating is only 15 points because two of her conditions have been assessed under Table 1 as attracting 5 points and these points cannot be accumulated. Ms Bennett’s conditions of obesity and diabetes both attract an impairment rating of 5 points under Table 1. Whilst both of these conditions each result in breathing difficulties when Ms Bennett undertakes physically demanding activities, the overall impact on function requiring physical exertion and stamina is a combined or common effect. In accordance with subsection 10(6) of the Determination, only a single impairment rating can be assigned under Table 1.

7. As Ms Bennett’s combined impairment rating is less than the required rating of at least 20 points, she fails to satisfy the qualification provisions of subsection 94(1)(b) of the Act with respect to her claim lodged on 4 May 2012.

8. The Tribunal has no discretion under the provisions of the legislation to do otherwise than affirm the decision under review rejecting Ms Bennett’s claim for DSP.

9. A further qualification requirement for DSP is that the person has a continuing inability to work (Subsection 94(1)(c) of the Act). The relevant provisions with respect to “continuing inability to work” state that where a person’s impairment is not a severe impairment, the person must have actively participated in a “program of support”. (Subsection 94(2)(aa)). It was Ms Bennett’s evidence that she had not participated in such a program and had never been informed of this requirement by Centrelink. It would appear that even if Ms Bennett’s impairment rating had been assessed at 20 points or more, she would unfortunately have not been eligible for DSP because she was unaware of the requirement to actively participate in a program of support.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

[Sgd]

Administrative Assistant

Dated : 10 October 2013

Date(s) of hearing	17 September 2013
Applicant	In person
Solicitors for the Respondent	Mr B Sparkes, Program Litigation and Review Branch