Eugina Huarcaya Alarcon and Secretary, Department of Social Services

[2014] AATA 617

[2014] AATA  617

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2013/5903
Re	Eugina Huarcaya Alarcon
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	1 September 2014
Place	Sydney

The Tribunal affirms the decision under review.

......................[SGD]..................................................

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – permanent conditions – whether the Applicant has an impairment rating of 20 points or more under the impairment tables – whether depression fully treated and stabilised - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), ss 94, 94(1), 94(2), 94(3B), 94(5)

Social Security (Administration) Act 1999 (Cth) ss 41, 42, Sch 1B, Sch 2

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011, ss 3, 6

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Fanning and Secretary, Department of Social Services [2014] AATA 447
Ulukut v Secretary, Department of Social Services [2014] AATA 399

REASONS FOR DECISION

Professor R McCallum AO, Member

1 September 2014

1. The Applicant, Ms Eugenia Huarcaya Alarcon, applied for a disability support pension (DSP) on 27 March 2013. The claim was rejected by Centrelink on 12 April 2013, and on 27 August 2013, the rejection decision was confirmed by an authorised review officer. Ms Huarcaya Alarcon appealed to the Social Security Appeals Tribunal (SSAT) but the SSAT confirmed the decision under review on 23 October 2013. Ms Huarcaya Alarcon now appeals to this Tribunal.

   THE LEGISLATION

2. To determine whether Ms Huarcaya Alarcon is entitled to receive a DSP, I am required to decide whether she satisfies the relevant criteria set out in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

3. The criteria for DSP are set forth in section 94 of the Act. In Ms Huarcaya Alarcon’s circumstances, Section 94(1) provides:

   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; ... .

4. Put simply, I must be satisfied, first, that Ms Huarcaya Alarcon has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are worth at least 20 points as specified in the impairment tables. Finally, I must be satisfied that she has a continuing inability to work.

5. Before further unpacking these criteria, four matters require explanation. In the first place, the three paragraphs in section 94(1) of the Act are joined by the conjunction “and”. This means that these paragraphs must be read cumulatively. Thus, to obtain DSP, Ms Huacaya Alarcon must have an impairment or impairments, and they must be worth 20 points of the impairment tables, and she must have a continuing inability to work.

   The thirteen week qualifying period

6. In the second place, section 94 of the Act must be read in conjunction with schedule 2 clause 4(1) of the Administration Act. Clause 4(1) provides:

   If:

   A person (other than a detained person) makes a claim for a relevant social security payment; and

   The person is not, on the day on which the claim is made, qualified for the payment; and

   assuming the person does not sooner die, 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

   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.

7. Clause 4(1) is worded in a complex manner, however, it sets out by implication a thirteen week qualifying period for DSP. The effect of this provision is that I am required to determine Ms Huarcaya Alarcon’s elligibility for DSP in the thirteen week period commencing on the day on which she applied for DSP, and concluding thirteen weeks after that day. Therefore, I must determine whether Ms Huarcaya Alarcon qualified for DSP between Wednesday 27 March 2013 and Tuesday 25 June 2013.

8. At this point in my narration, it is appropriate to refer to the relevant case law   on the qualifying period. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at 34:

   In the Tribunal’s consideration as to whether a condition has been stabilized and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues).

   This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

9. In Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at 31-32:

   31 In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.

   32 This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

10. Later, the Deputy President said at 33:

    33. …The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.

11. Therefore, in determining the eligibility of Ms Huarcaya Alarcon to receive a DSP I am confined to examining her impairments during the thirteen week qualifying period.

    The Impairment Tables

12. In the third place, section 94(1)(b) of the Act requires me to decide whether the impairments of Ms Huacaya Alarcon are worth twenty points under the impairment tables. This requires a few words of explanation. The impairment tables are found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Determination). The Determination also contains the rules for the application of the impairment tables.

13. In Ulukut v Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the impairment tables in the following words which I gratefully reproduce here. Senior Member Isenberg states: (5-6)

    5. The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to 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: s 6(1) of the Determination.

    6. The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

14. Importantly, impairments can only be allocated points under the tables when the medical condition is permanent within the meaning of the term in the Introduction to the Tables. The Introduction provides at paragraph 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.

15. Paragraph 6(5) of the Introduction provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Paragraph 6(6) provides, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment for the condition and any further treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.

    A continuing inability to work

16. The final matter of the four matters which I have been examining concerns the issue of a continuing inability to work because of an impairment or impairments, which is the criterion specified in section 94(1)(c)(i) and which is extensively defined in section 94(2). In Ms Huacaya Alarcon’s circumstances, She will have a continuing inability to work if one of her impairments is worth 20 points under the impairment tables. If, on the other hand, no single impairment of Ms Huacaya Alarcon is worth 20 points, but if the value of two or more of her impairments are worth 20 points, then only if she has engaged in a program of support will Ms Huacaya Alarcon be regarded as having a continuing inability to work and be qualified for DSP. At present, it is not necessary to further unpack the expression, program of support.

    DOES MS HUARCAYA ALARCON HAVE IMPAIRMENTS WHICH ARE WORTH 20 POINTS UNDER THE IMPAIRMENT TABLES?

17. The major issue which I am required to decide, is whether Ms Huarcaya Alarcon has one or more impairments (s 94(1)(a)), which receive ratings of at least 20 points under the impairment tables (s 94(1)(b))?

    The Evidence

18. Ms Huarcaya Alarcon attended the hearing in person and gave evidence on oath. I found her to be a truthful witness. Ms Huarcaya Alarcon was supported at the hearing by her nominated representative, Mr MJ Kwiatkowski, generalist case worker, Community Action Services Australia. The Tribunal was assisted by an interpreter in the Spanish language.  No other persons gave oral evidence. Thus, the Tribunal considered the evidence of Ms Huacaya Alarcon, along with the section 37 documents, together with further documentation  provided by the Applicant and Respondent.

19. Ms Huarcaya Alarcon  submitted the following further medical evidence:

    ·A letter from Christina Cercos of Essie Women’s Refuge dated 14 November 2013;

    ·A report of Dr Jose Menendez, Consultant Psychiatrist– to Dr Ton Lee of Fairfield Medical Centre dated 20 March 2014;

    ·A report of Dr Jose Menendez, Consultant Psychiatrist – Mr Misrachi of DHS dated 20 March 2014;

    ·A medical certificate from Dr Alicia Meneghetti dated 3 April 2014;

    ·A letter of Debroa Felman, registered psychologist, from Liverpool Women’s Health Centre dated 25 June 2014;

    ·A letter of C. R. Camacho dated 8 August 2014.

20. The Respondent tendered a job capacity assessment dated 23 May 2014 (‘the second JCA’) conducted in response to Ms Huarcaya Alarcon’s subsequent appeal; and a report from Ms Margaret Hampson, clinical psychologist, of the Department’s Health Professional Advisory Unit. The job capacity assessment dated 26 April 2013 (the ‘first JCA’) appears in the Section 37 “Tribunal documents”.

21. The medical reports found in the Tribunal documents are:

    ·Fairfield Hospital Emergency Department Clinical record dated 16/02/2002

    ·Letter from Emergency Depart of Fairfield Hospital dated 22/01/2007

    ·CT abdomen and pelvis from Dr David Chadban dated 13/5/2010

    ·Questionnaire from Dr Alicia Meneghetti dated 6/9/2011

    ·GP mental health care plan from Dr Alicia Meneghetti dated 6/9/2011

    ·Report from Debora Felman dated 26/3/2013

    ·Medical report from Dr Ton Lee dated 27/3/2013

    ·Patient health summary from Dr Ton Lee dated 6/4/2013

    ·Job Capacity Assessment dated 26/4/2013

    ·Report from Debora Felman dated 13/6/2013

    ·Patient health summary from Dr Ton Lee dated 23/7/2013

    ·Medical report from Dr Alicia Meneghetti dated 24/7/2013

    ·Bladder ultrasound from Dr Herbert Ho dated 30/7/2013

    ·Medical certificate from Dr Harry Pope dated 8/8/2013

    ·Pelvic ultrasound from Dr Ernest Bass dated 7/8/2013

    ·Report from Carlos Camacho dated 16/8/2013

    ·Patient health summary and report of Dr Ton Lee dated 27/9/2013

    ·Report from Carlos Camacho dated 25/10/2013

    ·Recommendation for hospital admission forms from Dr Alicia Meneghetti dated 20 and 24 August 2013.

22. Ms Huacaya Alarcon’s circumstances are as follows. Ms Huarcaya Alarcon was born in Peru in 1966. She emigrated to Australia and in 1995 she married, and in February 2013 she left her husband because of his long-standing domestic violence. There are four teenage children of the marriage and they live with Ms Huarcaya Alarcon.

23. Ms Huarcaya Alarcon currently suffers from:

    (a)Depression;

    (b)Chronic dry eyes;

    (c)Left facial palsy; and

    (d)Other conditions including: post cholecystectomy, GORD, arthritis and Hyperlipidaemia.

24. It is not in dispute that Ms Huarcaya Alarcon has impairments and so meets the first requirement which is set out in section 94(1)(a) of the Act. It is necessary to examine whether any of these impairments attract points under the impairment tables. As I have shown above, this Tribunal is confined to an examination of the impairments as they existed during the thirteen week qualifying period.

25. I will deal with each of Ms Huarcaya Alarcon’s conditions in turn.

    Depression

26. Ms Huarcaya Alarcon was diagnosed with depression many years ago. There is no specific date of onset according to the medical records however a ‘GP Mental Health Care Plan’ report authored by her general practititioner, Dr Alicia Meneghetti dated 6 September 2011 includes three problem diagnosis of: depression, panic disorders and anxiety. There is an active date of depression of 2007.

27. In the Medical Report form dated 27 March 2013, attached to the application for disability support pension, Dr Ton Lee, Ms Huarcaya Alarcon’s treating general practitioner, gives a diagnosis of “Chronic anxiety depression; domestic violence”.  He provides under date of onset as “many years ago”.

28. Over the years she has seen at least three psychologists, including Gabriela Salabert, and presently, Debora Felman and Carlos Camacho at least once every fortnight. She also sees community and social workers from community organisations and a women’s refuge. 

29. Ms Huarcaya Alarcon gave evidence that she did some of the family cooking. In relation to house work, she gave evidence that she did not make the children’s beds. She did do the washing, but only on days when she was feeling well could she hang the washing on the clothes line without the assistance of her children. Ms Huarcaya Alarcon did walk to the nearby shops to do the shopping, but she was usually assisted with the big weekly shop. Ms Huarcaya Alarcon gave further evidence that she really did not read newspapers or books in Spanish. In relation to social interaction, she gave evidence that she did have a few friends who came to her home. They usually brought food, while she made coffee or tea. She rarely, if ever, went to their houses. Ms Huarcaya Alarcon did travel on her own by train to Town Hall station to attend the hearing but met her representative at the station who guided her to the Tribunal.

30. The job capacity assessment of April 2013, by, ‘Hien’, a Registered Psychologist, declined to assess Ms Huarcaya Alarcon’s psychiatric disorder as fully treated, stabilised and diagnosed. A follow up JCA in May 2014 by ‘Helen’, a Registered Psychologist also declined to make an assessment contending that the condition is not fully stabilised.

31. It is not necessary to summarise all of the medical evidence which was before me. Suffice to write that on 13 June 2013 Ms Debora Felman who is a registered psychologist, reported that the Applicant had commenced weekly counselling on 21 February 2013. The fact that the Applicant only commenced counselling on a regular basis on 21 February 2013, shows in my view, that her depression was not fully treated and stabilised within the claim period. In that same report dated 13 June 2013, Ms Felman reported that “medication and counselling is helping.” This indicates that the condition was not fully treated and stabilized, and that with further counselling, it could improve. On 25 June 2013, the thirteen week qualifying period ended. On 16 August 2013 Mr Carlos Camacho who is a registered psychologist, first saw Ms Huarcaya Alarcon. Mr Camacho reported that Ms Huarcaya Alarcon “has been involved in one Cognitive Behavioural Treatment thus far, but will require ongoing weekly treatment”. Mr Camacho also reported the Applicant “has not been treated for psychological symptoms previously”.

32. On 20 March 2014 Dr Jose Menendez who is a psychiatrist, saw Ms Huarcaya Alarcon for the first time. Dr Menendez reported “there is no previous psychiatric history. She has been attending the 2 psychologists mentioned above for the last year and she’s happy with them”. Dr Menendez also reported “No medications were prescribed today. She has been treated in the past with antidepressants, according to your letter Deptran was the last one, but without any perceived benefits. She’s happy to continue under the care of her 2 psychologists whom she sees on a fortnightly basis at present.” Dr Menendez does give a rating for the depression, however, in my view, his opinion appears to be based on how Ms Huarcaya Alarcon presented on 20 March 2014, not how she was presenting during the thirteen week qualifying period.

33. On the basis of the medical evidence before me, I find that the depression of Ms Huarcaya Alarcon was not fully treated and stabilised during the thirteen week qualifying period and therefore I cannot make an impairment assessment under Table 5.

34. However, if Ms Huarcaya Alarcon was now to make a further application for DSP, in my view, the medical evidence concerning her depression and its treatment is much stronger. There is evidence that Ms Huarcaya Alarcon has moderate difficulties in undertaking house work, in concentrating for long periods of time and engaging in social interaction. There is also further evidence that the depression is now fully treated, stabilised and likely to continue for at least two years.

    Chronic dry eyes

1. Ms Huarcaya Alarcon was diagnosed with chronic dry eyes in about 2008. Dr Ton Lee in a report dated 27 September 2013 wrote that she requires regular lubricating medication and frequently complains of painful dry eyes.

2. The SSAT found Ms Huarcaya Alarcon’s condition attracts a rating of five points under the table, noting that: “She has dry eyes and uses Lacri-lube eye ointment. Dr Meneghetti stated in her report … that because of the facial palsy she has facial pain and uses painkillers and because of the dry eyes she has difficulty reading, has to protect the right eye with Tears [eye drops] and needs frequent vision assessment.”

3. The Respondent contends that the condition has no functional impact and should be assessed as nil under the table.

4. In her evidence, Ms Huarcaya Alarcon explained that her right eye was still giving her difficulties with tasks like reading and that it was often partially closed. Having regard to her evidence and to the prior finding of the SSAT, I find that Ms Huarcaya Alarcon’s chronic dry eyes condition attracts a rating of five points under Table 12.

   Left facial palsy

5. Ms Huarcaya Alarcon was diagnosed with left facial palsy in October 1999. The onset of this condition was precipitated while she was pregnant with her twin boys. She still suffers from Bell’s palsy.

6. In her report of 24 July 2013, Dr Meneghetti indicated that current symptoms include right facial pain, numbness and cramps in the fact, chronic dry eyes, and right eye loss of vision worse than left. On past treatment, Dr Meneghetti writes “attended neurologist; pain killers; acupuncture; physiotherapy; eye drops (tears)”. She currently takes analgesics and eye drops. Dr Meneghetti writes that any future or planned treatment includes: “Protect the right eye with tears; control pain with analgesia; needs vision assessment regularly.”

7. On the condition’s impact on her ability to function, Dr Meneghetti indicated “Difficulty reading” nothing that the impact of this condition on Ms Huarcaya Alarcon’s ability to function is expected to persist for “more than 24 months” and that she was “uncertain” as to the effect of this condition on Ms Huarcaya Alarcon’s ability to function within the next 2 years.

8. The Respondent contends that the facial palsy is now well managed and that it does not attract any points under the impairment tables.

9. Ms Huarcaya Alarcon gave evidence that her facial palsy is still painful and that it affects her concentration and that it is very difficult for her to read and to comprehend long newspaper material.

10. In light of the medical evidence and of the evidence of Ms Huarcaya Alarcon, I assessed Ms Huarcaya Alarcon’s condition against Table 8, ‘Communication Function’. A rating of five points under the table:

    There is a mild functional impact on communication in the person’s main language.

    (1)       At least one of the following applies:

    (a)       The person has some difficulty understanding complex words and long sentences (e.g. a complex newspaper article); or

    (b)       The person has mild difficulty in producing speech and has minor difficulty with being understood due to speech production or content.

    Other conditions

11. In relation to Ms Huarcaya Alarcon’s other conditions, namely, post cholecystectomy, GORD, arthritis and Hyperlipidaemia, I find that they are all well managed and do not attract any points ratings under the impairment tables.

    Consideration

12. For the reasons set out above, I find that Ms Huarcaya Alarcon has several impairments which satisfy section 94(1)(a) of the Act. The major impairments are depression, chronic dry eyes and facial palsy. I further find that the impairment of chronic dry eyes is worth 5 points under the impairment tables. I also find that the impairment of facial palsy is worth 5 points under the impairment tables. I also find that the impairment of depression was not fully treated or stabilised within the qualifying period commencing on 27 March 2013 and concluding on 25 June 2013. Thus, with respect to section 94(1)(b) of the Act, Ms Huarcaya Alarcon’s impairments only attract 10 points under the impairment tables which are insufficient for receipt of DSP. In these circumstances, it is not necessary for me to consider the question of continuing inability to work.

13. I hope that the Respondent will be mindful of Huarcaya Alarcon’s current condition. I also note the report of Dr Menendez dated 20 March 2014 who wrote that Ms Huarcaya Alarcon “is unable to attend work, education or training due to ongoing mental illness.” I also note the report of Carlos Camacho dated 8 August 2014 which states that Ms Huarcaya Alarcon “cannot presently search for employment, due to the severity of her symptoms”. I hope the Respondent can take this into account in allowing Ms Huarcaya Alarcon an exemption, if any, for any work activity tests or requirements of that kind for her income support entitlements.

    DECISION

14. I affirm the decision under review.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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Associate

Dated 1 September 2014

Date of hearing	26 August 2014
Advocate for the Applicant	Mr M Kwiatowski, Community Action Services Australia
Solicitors for the Respondent	Mr S Misrachi, DHS Program Litigation Review Branch