Eveans and Secretary, Department of Social Services
[2013] AATA 809
•14 November 2013
[2013] AATA 809
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1117
Re
Deborah Eveans
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 14 November 2013 Place Brisbane The decision under review is affirmed.
.....................[Sgd]................................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Whether 20 impairment points – Whether continuing inability to work – Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 26, 94
Social Security (Administration) Act 1999 (Cth) ss 13, 41, 42, Sch 2 cll 3, 4
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
14 November 2013
INTRODUCTION
I have to determine whether Ms Deborah Eveans (“the applicant”) is entitled to disability support pension (“DSP”).
PRIOR DECISIONS
On 20 July 2012 the applicant lodged her claim for DSP. On 8 August 2012 the applicant’s claim for DSP was rejected. On 23 October 2012 an Authorised Review Officer (“ARO”) affirmed the decision to reject the claim for DSP. On 20 February 2013 the Social Security Appeals Tribunal (“SSAT”) further affirmed the decision to reject the claim for DSP. On 11 March 2013 the applicant made an application to this Tribunal for review of the decision of the SSAT.
RELEVANT LEGISLATION
The legislation that I have to administer is the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).
Section 94 of the Act provides that in order to be qualified to receive DSP the applicant must have:
·a physical, intellectual or psychiatric impairment (s 94(1)(a) of the Act);
·an impairment rating of at least 20 points under the Impairment Tables (s 94(1)(b) of the Act); and
·a continuing inability to work (s 94(1)(c)(i) of the Act).
The Administration Act provides that the start day for a claimant who qualifies to receive DSP is the date on which they contact the Department regarding the payment, the deemed date of claim (ss 13, 41, 42, Sch 2 cl 3 of the Administration Act). The applicant will be entitled to receive DSP if she was qualified to receive that benefit as at the deemed date of her claim. If she was not qualified to receive DSP on that date she will nevertheless be entitled to receive DSP if she becomes qualified within 13 weeks of lodging a claim, in that event the start-day is the day that she became qualified to receive the social security benefit (Sch 2 cl 4(1) of the Administration Act).
There are a number of Ministerial Determinations which have to be considered.[1] The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”) came into force on 1 January 2012. The Determination contains the Impairment Tables which are function based and are intended to determine the level of functional impact of impairments (s 5 of the Determination). The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the Participation Determination”) came into force on 3 September 2011. Section 5 of the Participation Determination sets out the requirements for active participation.
[1] See s 26 of the Act.
ASSESSMENT PERIOD
On 20 July 2012 the applicant lodged her claim for DSP. However, on 11 July 2012 the applicant informed Centrelink of her intention to claim DSP, under social security law her claim is deemed to have been made on that date. I am therefore required to review the evidence before me to determine whether the applicant became qualified at any time within the period for consideration, from 11 July 2012 until 10 October 2012 (“the relevant period”).
ISSUES FOR DETERMINATION
I have to determine:
·whether the applicant, as at the date of her claim (or within 13 weeks of that date), had a physical, intellectual or psychiatric impairment; and
·whether the applicant had an impairment rating of at least 20 points or more under the Impairment Tables; and
·whether the applicant had a continuing inability to work.
WHETHER THE APPLICANT HAS AN IMPAIRMENT
I am required to consider whether during the relevant period the applicant satisfied
s 94(1)(a) of the Act. I find that the applicant had within the relevant period a physical, intellectual or psychiatric impairment as required by s 94(a)(1) of the Act. To make this finding I rely upon the medical report of Dr Mal Fernando dated 23 July 2012 in which
Dr Fernando reported that the applicant had depression – major chest pains under investigation, osteoarthritis, sleep apnoea, Factor 5 gene mutation, plantar fasciitis and fibroids.[2] I also rely upon the concession of the Secretary who has properly conceded that the applicant suffers from a number of impairments.
[2] Exhibit A, pp. 113-120.
ASSESSMENT OF IMPAIRMENTS
I am next required to consider whether within the relevant period the impairments of the applicant were individually or cumulatively of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Act.
Mental Health Function
I will consider whether a rating can be assigned in relation to the mental health conditions of the applicant. The introduction to Table 5 of the Determination, which relates to Mental Health Function, provides: “The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).”
On 23 July 2012 Dr Fernando reported that the applicant suffered from “depression – major”. Dr Fernando then considered that the condition was expected to persist for a period between 3 and 24 months, and that the effect of the condition on the applicant’s ability to function was expected to somewhat improve.
On 27 August 2012 Ms Jan Patty, psychologist, diagnosed the applicant with having a major depressive disorder and PTSD, the date of diagnosis being 30 July 2012.[3]
Ms Patty stated that the condition was expected to persist for a period greater than 24 months and the effect of the condition on the Applicant’s ability to function was uncertain. A recent search of the Australia Health Practitioner Regulation Agency’s Registers of Practitioners which is in evidence confirms that Ms Patty is not registered as a clinical psychologist.[4] The applicant in giving evidence stated that she did not see Ms Patty anymore because the reason why she was referred to her was to obtain a report for the purposes of the DSP claim: however, her treatment has been beneficial.
On 5 February 2013 Ms Patty wrote a progress report for Medicare in which she reported that the applicant had “improved psychologically and emotionally”.[5]
[3] Ibid at pp. 133-140.
[4] Exhibit F.
[5] Exhibit A, pp. 161-162.
On 6 December 2012 Elizabeth Torbey, Intern Psychologist, and Dr Donna Spooner, Clinical Neuropsychologist, completed a clinical neuropsychological report.[6]
The applicant was assessed on 4 and 5 October 2012. This report was compiled for the purpose of assessing the cognitive functioning of the applicant and cannot be regarded as a diagnosis of the condition of the applicant as the report contains the remarks that the applicant “has current diagnoses of Post-Traumatic Stress Disorder and Major Depressive Disorder made by her current psychologist”.
[6] Ibid at pp. 150-157.
On 7 February 2013 Dr Jia Haur Tho, Neurologist and Clinical Neurophysiologist, reported that Depression and PTSD of the applicant were conditions which were listed as being “generally well managed and that cause minimal or limited impact on ability to function”.[7] Dr Tho reported that significant improvement of the conditions was expected.
[7] Ibid at pp. 165-172.
On 6 August 2013 Dr Donna Spooner, Clinical Psychologist, provided further details in relation to the cognitive functioning assessment completed 6 December 2012.[8]
Dr Spooner confirmed that she never met with the Applicant, rather Ms Torbey, an intern, performed the neuropsychology assessment and Dr Spooner supervised the production of the report. Dr Spooner confirmed that the applicant reported a history of PTSD and Major Depressive Disorder diagnosis made by another treating psychologist. Dr Spooner also confirmed that the assessment was not conducted for the purpose of reaching a psychological diagnosis.
[8] Exhibit B.
On 18 October 2013 Dr Susie Sweeper, Clinical Psychologist, confirmed the previous diagnosis of Ms Patty that the applicant suffers from Major Depression and PTSD.
The Secretary relies upon the fact that during the relevant period there was not a diagnosis of the mental health conditions of the applicant by a psychiatrist or clinical. However, there has been a diagnosis of Major Depression and PTSD by Dr Sweeper. While this diagnosis was certainly not made within the relevant period, it confirms the previous diagnosis of Ms Patty. In any event it was not submitted that the Determination requires that a diagnosis be made within the relevant period.
After reviewing the medical evidence I find that an impairment rating cannot be assigned for the mental health conditions of the applicant having regard to the requirements of s 6(3) of the Determination, which provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is “permanent”. I conclude that the mental health condition of the applicant cannot be regarded as “permanent” because her condition cannot be regarded as “fully stabilised”. Dr Fernando, Dr Tho and Ms Patty reported that there will be improvement in the mental health condition of the applicant. Section 6(6) of the Determination provides that a condition can be regarded as fully stabilised if “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”. In this regard it is important to note that Dr Tho in his report has indicated that there is “significant improvement expected” of the mental health conditions. There is evidence from a Job Capacity Assessor (“JCA”) that the applicant has a capacity for work within 2 years (with intervention) of 15-22 hours per week.[9]
[9] Exhibit A, pp. 122-129.
Non-specific Neurological Symptoms
There is evidence that the applicant suffers from certain non-specific neurological symptoms. The medical report of Dr Fernando dated 23 July 2012 that was lodged in support of the applicant’s claim for DSP does not refer to non-specific neurological symptoms or Transient Ischaemic Attacks (“TIAs”). On 7 February 2013 Dr Tho reported that the applicant has the condition of TIAs with a date of diagnosis of
27 April 2012. However, I consider that this condition cannot be rated as the condition was not fully diagnosed, fully treated and fully stabilised during the relevant period.[10] There are medical reports which have been issued after the relevant period which outline future planned treatment. As the condition causes cognitive difficulties it is important to have regard to the report of Dr Spooner dated 6 December 2012 in which a number of recommendations are outlined which she considered may lead to further improvements in the cognitive functioning of the applicant. One of her recommendations is that there is a need to review medications and their combined psychotropic effects. Dr Tho in his report dated 7 February 2013 indicated that there was future planned treatment with Asasantin, a medication to prevent platelet formation, this treatment was to be administered after surgery.
[10] See 6(4) of the Determination.
Osteoarthritis
Dr Robert Anderson in an MRI report dated 21 April 2012 has confirmed that the applicant has the condition of osteoarthritis in her lower spine.[11] Dr Todd Stariha in an x‑ray report dated 27 April 2012 has confirmed that there is mild degenerative osteoarthritis in the left wrist of the applicant, as well as minor degenerative changes in both hip joints.[12] On 23 July 2012 Dr Fernando reported that the osteoarthritis condition was one of the medical conditions of the applicant that was either well managed or caused minimal or limited functional impact. At the time of that report Dr Fernando considered that significant improvement was not expected. However, in a later medical report dated 27 August 2012 Ms Patty opined that significant improvement was expected of the osteoarthritis condition. In evaluating whether the osteoarthritis condition was likely to improve I have relied upon the report of Dr Fernando as he is a medical practitioner. While the treatment of the applicant is Panadol, Osteopathy and physiotherapy, there is no evidence before me that the applicant’s osteoarthritis condition was likely to improve. On the state of the evidence before me I consider that the osteoarthritis condition is fully diagnosed, fully treated and fully stabilised, and can be assigned a rating under the Impairment Tables.
[11] Exhibit A, pp. 60-62.
[12] Ibid at p. 63.
I consider that the osteoarthritis condition of the left wrist should be assigned 5 points under Table 2 of the Determination – Upper Limb Function. Ms Patty reported that the grasping of the applicant was impeded. The applicant states that she has problems opening jars and bottles, and has a general weakness in her left arm.
I consider that the osteoarthritis condition of the lower limbs should be assigned 5 points under Table 3 of the Determination – Upper Limb Function. I consider that the condition causes difficulties for the applicant who has an inability to sit or stand for long periods of time. In giving evidence she confirmed that she can walk to the shopping centre from the car park, but relies upon the support of a shopping trolley to walk around the shopping centre. The applicant informed the SSAT that she was able to walk to local shops, that she can manage steps or stairs, and was able to stand for more than 5 minutes. This meets the requirements of having a mild functional impact on activities using the lower limbs.
I assign a total impairment rating of 10 points for the osteoarthritis condition of the applicant.
Chest pains
On 23 July 2012 Dr Fernando reported that the applicant had the condition of “chest pains – under investigation”. Dr Fernando reported that he was waiting for a cardiac assessment. Dr Fernando expected the condition to impact upon the applicant’s ability to function for a period of 3 to 24 months and the effect of the condition on the applicant’s ability to function over the next to two years was uncertain. In these circumstances where there has not been a cardiac assessment the condition cannot be considered fully diagnosed and therefore cannot be assigned a rating under the Impairment Tables.
For the sake of completeness I should mention that it may well be the case that the chest pain condition described by Dr Fernando is part of what has been described by Dr Tho as TIAs. In his report of 7 February 2013 Dr Tho has referred to “ongoing chest symptoms”. If the chest pain condition is part of the TIAs condition, then s 10(6) of the Determination precludes the assigning of a separate impairment rating for each condition as this would result in the same impairment being assessed more than once. However, on the current state of the evidence I cannot assign a rating to the chest condition.
Other Conditions
On 23 July 2012 Dr Fernando reported that the applicant suffered from sleep apnoea, factor 5 gene mutation, plantar fasciitis and fibroids. Dr Fernando then reported that these conditions were generally well managed and caused minimal or limited impact on the ability of the applicant to function. An impairment rating of greater than nil cannot be assigned to these conditions which Dr Fernando has reported as having a minimal or limited impact on the ability of the applicant to function. This is because s 5(2) of the Determination provides that the purpose of the Impairment Tables is to assess functional impairment. Dr Fernando reported that the sleep apnoea condition caused lack of concentration and was being treated with a CPAP machine, significant improvement was not expected. However on 23 October 2012 the ARO found that the sleep apnoea condition had improved as the applicant had only recently commenced using the CPAP machine.[13] The factor 5 gene mutation condition was not being treated: however, the condition can increase the risk of deep vein thrombosis. The plantar fasciitis condition was being treated with Panadol Osteopathy and was reported as making it difficult to walk for a long distances; however, significant improvement of this condition was expected. The condition of fibroids caused tiredness, but significant improvement of this condition was expected. The applicant also has a condition of diverticulitis which was well-managed with treatment.
[13] Exhibit A, p. 141.
I have concluded that the applicant cannot be assigned 20 points or more for her impairments and she therefore does not satisfy section 94(1)(b) of the Act.
CONTINUING INABILITY TO WORK
I will also consider whether the applicant can be regarded as having a continuing inability to work as required by s 94(1)(c)(i) of the Act. In all strictness it is not necessary for me to consider this matter as the applicant does not satisfy s 94(1)(b) of the Act. However, I will outline my observations on this matter for the benefit of the applicant.
In considering whether the applicant can be regarded as having a continuing inability to work, there is common ground that s 94(1)(c)(ii) has no application to this case. I should also mention that this is not a case where the applicant has been found to have a severe impairment which attracts 20 points or more under a single Impairment Table (s 94(3B) of the Act).
The Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied they have actively participated in a program of support as well as satisfying the other requirements of s 94(2) of the Act. The Act also provides that a person has activity 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 s 94(3C).
Section 5 of the Participation Determination outlines the requirements for active participation in a program of support. It provides that a person has actively participated in a program of support if the person has complied with the requirements of the program of support and participated in a program of support during the 36 months ending immediately before the relevant date of claim (s 5(1)). It is also necessary that the person have participated in the program of support for at least 18 months (s 5(2)). A person must advise the Secretary of the program of support they have undertaken (s 5(6)). Part 3 of the Participation Determination sets out the guidelines that the Secretary must comply with in deciding whether he or she is satisfied that, in a case where a person’s impairment is not a severe impairment, the person has actively participated in a program of support within the meaning of s 94(3C) of the Act. The applicant has not actively participated in a program of support and therefore is unable to satisfy s 94(2) of the Act. In my opinion her claim for DSP must fail on that ground alone.
In considering whether the applicant has a continuing inability to work, it is important to bear in mind that the Act defines work as being work that is for at least 15 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 (s 94(5) of the Act). In evidence is the report of the JCA who has assessed that the applicant had a capacity for work of 15-22 hours per week within the next 2 years with intervention. That report is a comprehensive report which fairly sets out the qualifications and work experience of the applicant, this report was not challenged by the applicant. Having regard to that report I also cannot be satisfied that the applicant has a continuing inability to work.
I appreciate that Dr Sweeper in her report of 18 October 2013 is of the opinion that the applicant would not be suitable for employment: however, her opinion is not based upon the test laid down by s 94(5) of the Act.
I find that the applicant does not satisfy section 94(1)(c)(i) of the Act.
DECISION
I affirm the decision under review.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of
Dr P McDermott RFD, Senior Member.....................[Sgd]..............................................
Associate
Dated 14 November 2013
Date of hearing 23 October 2013 Advocate for the Applicant Ms Amanda Hawkins Advocate for the Respondent Mr Chris Bishop
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