Erb and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 623
•5 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 623
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4806
GENERAL ADMINISTRATIVE DIVISION ) Re KATRINA ERB Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member) Date5 September 2011
PlaceHobart
Decision The decision under review is set aside and the matter remitted to the respondent for reassessment in accordance with the Tribunal’s findings.
.
[Sgd Ms A F Cunningham]
Senior Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – Impairment Tables and impairment rating – continuing inability to work – decision under review set aside
Social Security Act 1991, s 94
Tables for the Assessment of Work-Related Impairment for Disability Support Pension
Social Security (Administration) Act 1999, ss 41, 42, Schedule 2 Clause 3
Madden v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 203
Stojchevski v Secretary, Department of Employment and Workplace Relations [2005] FCA 58
REASONS FOR DECISION
5 September 2011 Ms A F Cunningham (Senior Member) 1.For a number of years the applicant, Katrina Erb, has suffered from several debilitating conditions which affect her joints, restrict her movements and cause her pain. On 19 March 2010 she lodged a claim for disability support pension (DSP) which was rejected on the basis that whilst most of her impairments were considered permanent, fully treated and stabilised, the assigned impairment rating was below the required 20 points to qualify for a DSP.
2.Ms Erb subsequently supplied further medical evidence however the original decision was affirmed. The matter was then referred to a Centrelink authorised review officer (ARO) who on 23 July 2000 affirmed the decision under review as did the Social Security Appeals Tribunal (SSAT) on 22 September 2010. Ms Erb has now appealed to the Administrative Appeals Tribunal.
3.Ms Erb gave oral evidence before the Tribunal and was represented by Ms Shelley Eder. Mr Flemming Aaberg appeared for the respondent. The T Documents were tendered pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Also tendered were two letters written by Dr Andrew Croft, Ms Erb’s general practitioner. The second letter was a duplicate of the first letter dated 22 March 2011 stating that Ms Erb had suffered from depression for a number of years which has been treated and stabilised with anti-depressant medication and regular medical review. Further, Dr Croft did not anticipate a significant improvement in her condition which is likely to be aggravated by deteriorations in her medical and social conditions. In the letter of 1 July 2011 Dr Croft stated that the nature of Ms Erb’s condition “means that any manual or physical is not feasible”.
4.The medical reports contained in the T Documents confirm Ms Erb’s medical conditions of fibromyalgia, osteoarthritis, Raynaud’s disease, depression and hypertension.
5.Ms Erb’s initial claim lodged on 19 March 2010 was accompanied by a medical report form which listed medical conditions of fibromyalgia (with osteoarthritis and Raynaud’s disease) and depression.
6.A job capacity assessment (JCA) was conducted on 31 March 2010 and an impairment rating of 15 points was assigned collectively to the conditions of fibromyalgia, osteoarthritis and Raynaud’s disease. The condition of depression was not assigned an impairment rating as it was not considered to be fully treated and stabilised. On 22 April 2010 the claim was rejected on the basis that the impairment rating of 15 points was less than the 20 points required under the Act.
7.On 7 May 2010, a further medical report prepared by Ms Erb’s treating doctor was received which listed the same conditions but included a further condition of hypertension. A subsequent JCA was prepared which attributed an impairment rating of 15 for Ms Erb’s fibromyalgia and a 0 rating for hypertension with the comment that the condition is controlled with medication and has nil functional impact.
ISSUES
8.The issues to be determined are whether Ms Erb satisfied the qualification provisions of the Social Security Act 1991 (the Act) at the time of lodging her claim on 19 March 2010 or within 13 weeks thereafter, by having an impairment rating of at least 20 points and also, a continuing inability to work.
QUALIFICATION FOR DSP
9.The qualification provisions are contained in section 94 of the Social Security Act 1991 which state as follows:
“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;
(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
(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
(f) the person is not qualified for disability support pension under section 94A”.
10.The Tribunal accepts that the provisions of sub-paragraphs 1(a), (d), (e) and (f) are satisfied in this case. What remain in contention are the provisions of sub-paragraphs 1(b) and (c).
11.Certain provisions of the Social Security (Administration) Act 1999 (the Administration Act) are also relevant with respect to the qualification period for DSP. Sections 41, 42 and Schedule 2 Clause 3 of the Administration Act provide that the start day for a qualified DSP claimant is the date of claim, the only exception being when a person is not qualified on the date of claim but “will … become qualified” and “become so qualified” within 13 weeks of lodging a claim. In that case the start date is the day they become qualified (Schedule 2 Cl 4(1) of the Administration Act).
12.As Ms Erb lodged her claim for DSP on 19 March 2010, her qualification period is between 19 March 2010 and 18 June 2010.
13.Section 94(1) of the Social Security Act refers to the Tables of Assessment of Work-Related Impairment for Disability Support Pension which are contained in Schedule 1B of the Act. The introduction to the Tables states that:
“2. These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based …”
The question to be asked in each case is “which body systems have a functional impairment due to this condition?”
A rating is only to be assigned where the condition is a “fully documented, diagnosed condition which has been investigated, treated and stabilised”.
14.At paragraph 5 it is stated:
“The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years”.
15.At paragraph 6 it is stated:
“In order to assess whether a treatment is fully diagnosed, treated and stabilised, one must consider:
· What treatment or rehabilitation has occurred;
· Whether treatment is still continuing or is planned in the near future;
· Whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
·Treatment that is feasible and accessible ie, available locally at a reasonable cost;
·Where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person …”.
were ms erb’s conditions fully diagnosed, treated and stabilised?
fibryomyalgia, osteoarthritis and reynaud’s disease
16.The JCA concluded that these conditions were all fully diagnosed, treated and stabilised and could therefore be assigned an impairment rating. The SSAT made the same finding and the respondent accepts the findings. The Tribunal similarly finds.
hypertension
17.This condition was listed in the treating doctor’s later report dated 7 May 2010 and was assessed by the JCA on 29 May 2010 as fully treated and stabilised. The SSAT similarly found and the Secretary has conceded that the condition was fully diagnosed, treated and stabilised in the qualification period and can be assigned an impairment rating. The Tribunal accepts the Secretary’s concession.
depression
18.In the medical report completed on 19 March 2010, Dr Croft states that Ms Erb has suffered from depression since 2006 with current symptoms identified as low mood, fatigue, poor concentration and poor motivation. The current treatment was medication and there were no expected changes. Dr Croft expected that the impact of the condition would persist for more than 24 months.
19.In a further report prepared on 7 May 2010, Dr Croft had listed depression as a condition causing minimal or limited impact on ability to function, and that significant improvement could be expected. Her condition was being treated with the same medication. In a letter dated 22 March 2011 Dr Croft reported:
“Katrina Erb has suffered from depression for a number of years. This has been treated and stabilised with anti-depressant medication and regular medical review. I do not anticipate a significant improvement in her condition. It is likely to be aggravated by deteriorations in her medical and social situation”.
20.The reports that pertain to the qualification period however state that Dr Croft considered that significant improvement could be anticipated. Athough it would appear that this did not result, on the basis of the evidence, the Tribunal concludes that the condition was not fully treated and stabilised during the qualification period.
IMPAIRMENT RATINGS
21.In Madden v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 203 the Tribunal assigned a single impairment rating that took into account the combined functional loss of four separate conditions and noted at paragraph 25:
“If two conditions cause a common functional loss, a single rating must be assigned for the combined functional loss”.
22.In Stojchevski v Secretary, Department of Employment and Workplace Relations [2005] FCA 58, Conti J commented:
“The respondent Secretary pointed out that any issue arising as to which Table or Tables are appropriate to use depends on what are the functional losses in relation to which a person is found to have suffered. Two or more medical conditions, in this case the appellant’s thoraco lumbosacral spine spondylosis and bilateral hip pain, may therefore result in a common impairment and, if that is the case, it would be inappropriate to assign a separate impairment rating fo reach medication condition. Otherwise, the respondent Secretary further pointed out, to do so would result in the same functional loss being assessed more than once”.
23.It was submitted on behalf of the Secretary that the evidence suggests a commonality to the functional loss reported and that it would be an incorrect use of the Tables to identify discreet functional losses for each condition, for to do so would amount to double counting. The Secretary supports the JCA assessment of a 15 point impairment rating using Table 20 which was endorsed by the SSAT.
24.Table 20 can be used for miscellaneous conditions, for example, malignancy, hypertension, HIV infection, morbid obesity, transplants, miscellaneous ear nose and throat conditions and chronic fatigue or pain. The criteria for a rating of 15 are:
“Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.
Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected”.
25.It was submitted by Ms Eder that the evidence of functional loss supports an assessment of impairment under Table 3 which refers to upper limb function, Table 4 function of the lower limbs and Table 20 with reference to pain. Ms Eder referred to Ms Erb’s evidence regarding the impact of her conditions on the use of her hands. It was Ms Erb’s evidence that her conditions have affected the use of her hands which vary between feeling hot and cold. She is unable to undertake any craft work, do up buttons and zips on her clothing, butter toast or hold a book for any period. She described a throbbing pain in her hands which persists for most of the day and often wakes her up at night. She feels the pain mostly in her left hand but has problems with both of her thumbs which were present in March 2010. Because she is unable to tie her laces she has resorted to slipon footwear. It was Ms Erb’s evidence that her dominant hand is her right hand.
26.Ms Erb described cramping sensations in her legs which were present in March 2010 and used to be alleviated by magnesium tablets which now do not provide any relief. Her legs are now painful all of the time. In March 2010 she said that she could sit for a period of half an hour but that she experienced pain on rising. She also experienced pain in her legs when she was walking and numbness in her feet. She was prescribed a “double dose” of anti-inflammatory tablets to help with her pain.
27.Ms Erb also described breathing difficulties and said that even taking a shower causes exhaustion. She has difficulty bending over and getting dressed and with general day to day activities.
28.It was Ms Eder’s submission that the evidence with respect to functional loss for upper limbs supports an impairment rating of 15 for which the criteria are:
“Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling”
29.With respect to Table 4 it was submitted that the evidence of functional loss supports a minimum impairment rating of 10 but that a rating of 20 which requires a major interference with walking or climbing or squatting or sitting or kneeling or walking distance would also be appropriate.
30.The criteria for an impairment rating of 10 are:
“Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting”.
The criteria for an impairment rating of 20 are:
“Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or
Unable to walk or stand but independently mobile using a self-propelled wheelchair”.
31.The SSAT reported that Ms Erb had described numb and tingling feelings in her hands and feet as a result of Raynaud’s Disease and that she found it difficult to use her hands and often drops things. She had also described pain in her joints from arthritis which particularly affects her knees, elbows and hips. She has difficulty reaching over her head, for example, to wash her hair. The SSAT stated “when asked, Ms Erb found it difficult to separate the effects of the osteoarthritis, Raynaud’s Disease and fibromyalgia on her function”.
32.It was submitted by Ms Eder that the various conditions from which Ms Erb suffers have resulted in separate functional losses, that is to her upper and lower limbs. It is accordingly appropriate to separately assess the functional loss and consequent impairment ratings and this does not result in double counting under the Tables.
33.The Tribunal accepts Ms Erb’s submission and rejects the contention made on behalf of the Secretary that there is a commonality to the functional loss. Whilst it may be difficult to ascribe the functional loss to a specific condition, there was evidence of which the Tribunal is satisfied that the conditions result in discreet functional loss, for example, to Ms Erb’s hands and upper limbs as well as her lower limbs.
34.The treating doctor’s report of 19 March 2010 noted limited range of movements to the upper/lower limbs/neck/back and difficulty in sitting/standing/stretching and further, impacts on day to day activities, pain and restricted physical ability. The subsequent report which also fell within the qualification period, repeated these symptoms and included difficulty with hanging washing/vacuuming/making beds, limited exercise tolerance and difficulty with dressing-buttons and bras.
35.On the basis of this evidence, the Tribunal accepts that impairment ratings of 15 under Table 3 and 10 under Table 4 are appropriate. The Tribunal is not satisfied that the evidence supports a finding of major interference as required for a rating of 20 under Table 4. The Tribunal does not accept that in this case an assessment should also be made pursuant to Table 20 on the basis of chronic pain because the symptoms described by Ms Erb which result in functional loss to her upper and lower limbs are essentially pain related. The Tribunal considers however, that an alternative assessment could be made under Table 20 and that the evidence supports an impairment rating of 20. The JCA prescribed an impairment rating of 15 for moderate to severe symptoms which prevent few everyday activities and do not affect self-care or full time work. In the Tribunal’s view the evidence of both Ms Erb and her medical practitioner was that her symptoms do impact on her ability to self-care and undertake most daily activities.
36.On the basis of either assessment, the qualification provision of an impairment rating of 20 as required by section 94(1)(b) is satisfied.
continuing inability to work
37.The following provisions of section 94 are relevant and read as follows:
94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) 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) 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).
94(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.
94(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support that:
(i) is designed to assist the person to prepare for, find or maintain work; and
(ii) is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or
(b) is likely to need such a program of support provided occasionally; or
(c) is likely to need such a program of support that is not ongoing.
94(5) In this section:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre‑vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work‑related training (including on‑the‑job training).
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”.
38.In considering whether Ms Erb had a continuing inability to work during the qualification period. The Tribunal must be satisfied that her impairment was of itself sufficient to prevent her from doing any work independently of a program of support within the following two years. That is work as the term is defined for at least 15 hours per week even if that work is not locally accessible.
39.The JCA report prepared following an assessment on 31 March 2010 found that Ms Erb’s current work capacity was for between 8 and 14 hours per week on the basis that she is “functionally impacted from permanent conditions”. He future work capacity within the next two years without intervention was stated to also be between 8 to14 hours per week and with intervention between 15 – 22 hours per week. The recommended intervention was “job seeking/post placement support and psychological counselling”.
40.It was noted that until recently Ms Erb had been working 20 hours per week but left because she found the marketing position stressful. It was Ms Erb’s evidence that at the time she undertook part-time cleaning work of approximately three hours in the evenings and then commenced work at a call centre over a period of some three weeks. She agreed that she found the work stressful but also reported severe persistent headaches.
41.The symptoms identified in the JCA report are joint and muscle pain, loss of strength, difficulty holding objects and performing some activities of daily living, limited tolerances for sitting, standing and walking. Symptoms of depression included low moods, loss of motivation and poor sleep. On the basis of these symptoms the JCA identified suitable work as light less skilled, for example, console operators/light nursery work. The expected outcome from the suggested intervention of job seeking/post placement support would, it was suggested, enable Ms Erb to undertake suitable non-physical and not too stressful employment as per the suggested examples of console operator or light nursery work. The expected outcome of psychological counselling was stated as being able “to identify and modify negative thought patterns and mal adaptive behaviours associated with depression”.
42.As depression has not been assigned an impairment rating on the basis that it is not a fully treated and stabilised condition, any suggested treatment is not relevant in considering a person’s inability to work. It is difficult to understand how psychological counselling could have a positive impact on the symptoms identified in the JCA as impacting on Ms Erb’s ability to work. There is no medical evidence that negative thought patterns and mal adaptive behaviours were impacting on her ability to work. The report from Dr Croft states that Ms Erb’s depression is treated with medication and that the condition has been treated since 2006.
43.Whilst the Tribunal accepts the experience and ability of the work capacity assessor in the assessment of an applicant’s capacity to work or undertake retraining there is insufficient information as to how the recommended interventions would assist Ms Erb to return to work and maintain a work capacity of between 15 and 22 hours per week. Given the identified symptoms and in particular those of joint and muscle pain, loss of strength, limited tolerance to sitting, standing and walking, it is the Tribunal’s view that the recommend interventions would have little if any impact such as to increase Ms Erb’s capacity for employment to over 15 hours per week. As well as noting Ms Erb’s limited ability to perform tasks that involve strenuous exercise such as lifting, carrying and moving heavy objects, the job capacity assessor noted a reduced capacity to work or participate in job search activities due to pain and fatigue following physical exertion. Further, that frequent and on-going episodes of pain may affect energy levels, attention and concentration ability. There is simply no evidence as to how on-going post placement support would alleviate the symptoms such as to enable Ms Erb to work for 15 hours each week.
44.For the above reasons the Tribunal accepts that Ms Erb has a continuing inability to work within the meaning of section 94(2) and thus satisfies the qualification provisions of section 94(1) for DSP. The decision under review is accordingly set aside and the matter remitted to the respondent for reassessment in accordance with the Tribunal’s findings.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
Signed: R Hunt - Associate
Date/s of Hearing 13 July 2011
Date of Decision 5 September 2011
Counsel for the Applicant Ms S Eder
Solicitor for the Applicant Launceston Community Legal Centre
Counsel for the Respondent Mr F Aaberg
Solicitor for the Respondent Program Litigation and Review Branch
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