Eyit and Secretary, Department of Social Services (Social services second review)

Eyit and Secretary, Department of Social Services (Social services second review) [2018] AATA 2091 (4 July 2018)
Division:GENERAL DIVISION
File Number: 2017/0465
Re:Feride Eyit
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr Bennie Ng, Member
Date:4 July 2018
Place:Melbourne

The Tribunal affirms the decision under review.
…………………[sgd]…………………………..
Member

Catchwords
SOCIAL SECURITY – disability support pension – impairment tables – insufficient
points under tables – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Bennie Ng, Member
4 July 2018
BACKGROUND

Ms Feride Eyit (the applicant) was granted a disability support pension (DSP) on 24 March 2011.
On 29 June 2016, the Health Professional Advisory Unit of the Department of Human Services (HPAU) made an assessment that Ms Eyit’s spinal and upper limb conditions were fully diagnosed, treated, and stabilised. However, it found there was no functional impact caused by these conditions.
The Department of Social Services (the respondent) made a decision to cancel the applicant’s DSP on 10 August 2016 under section 80(1) of the Social Security (Administration) Act 1999.
Ms Eyit requested a review of this decision, and the decision was affirmed by an authorised review officer (ARO) on 12 October 2016.
On 18 October 2016, Ms Eyit applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) for an independent review of the decision made by the ARO. On 5 January 2017, AAT Tier 1 affirmed the decision of the ARO. That Tribunal found that none of the presented conditions were fully diagnosed, treated, and stabilised. As a result, Ms Eyit’s medical conditions attracted no points under the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). The Tribunal therefore did not need to address whether Ms Eyit had a continuing inability to work under s 94(1)(c)(i) of the Social Security Act 1991 (the Act).
Ms Eyit lodged a second-tier review of this decision with the General Division of the Administrative Appeals Tribunal (AAT Tier 2) on 27 January 2017. The reasons for this application included ongoing back and shoulder pain, with the applicant having difficulty lifting heavy items, bending, and standing for more than two hours at a time.
The AAT Tier 2 hearing was conducted on 1 December 2017. Ms Eyit was self‑represented. The respondent was represented by Belinda Lewis of the Department of Human Services.
ISSUES
The principal issue for determination is whether Ms Eyit was eligible to receive DSP and if so, whether it was correctly cancelled on 10 August 2016. Accordingly, this Tribunal assessed Ms Eyit’s eligibility for DSP as at the date of its cancellation.
The criteria for the DSP are set out in ss 94(1)(a)-(c) of the Act, which state:.
(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;
…
Ms Eyit advised that she suffered from:
·Spine pain;
·Lower back pain;
·Right arm condition; and
·Sleeping issues
Dr Con Lahanis advised that he has been Ms Eyit’s general practitioner since 29 January 2002. In his medical report dated 13 May 2016, he stated that Ms Eyit suffered from neck, back, and shoulder soft tissue injury. He provided a further medical report on 12 August 2016.
On 29 June 2016, a registered nurse from the HPAU assessed Ms Eyit and regarded her spinal condition as fully diagnosed, fully treated, and stabilised. Ms Eyit was therefore considered to meet the requirements for zero points under Table 4. The assessor also concluded that Ms Eyit’s mental health condition was not fully diagnosed, fully treated or stabilized [sic].
The respondent provided the Tribunal with documents under s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). The Tribunal noted that the evidence presented was divided into two periods. Firstly, there were reports dated from 18 August 2008 to 1 November 2011 from Dr New, Dr French, Dr Moran, Dr Tudball, Dr Mullany, Dr Kumar, and Ms Smith. Secondly, there was correspondence dated from 11 August 2016 to 13 September 2016 (inclusive) from Dr Ang, Mr To, Mr Drnda, Professor Varma, and Ms Bailey. Multiple job capacity assessment (JCA) reports were also received in both periods.
THE LEGISLATION
Impairment Tables
The Impairment Tables mentioned in s 94(1)(b) of the Act list 15 separate impairments, with each Table referring to different bodily functions. The Tables are function-based rather than diagnosis-based, which means it is not enough for an applicant to simply be diagnosed with a condition which falls under one of the Impairment Tables. The applicant must be functionally impaired to an extent sufficient to reach 20 points under one or more of the Impairment Tables. This determination is made by way of applying the relevant descriptors. In this way, the Impairment Tables are designed to assign ratings which will determine the level of functional impact of the impairment. They are not designed to assess conditions.
Impairment – s 94(1)(a)
The first requirement under the Act for a person seeking to qualify for the DSP is that the person has a physical, intellectual or psychiatric impairment.
Impairment is defined in s 3 of the Impairment Tables to mean a loss of functional capacity affecting a person’s ability to work, that results from the person’s condition.
The Secretary did not dispute that Ms Eyit suffers from a physical, intellectual or psychological impairment.
Considering the concession by the Secretary and the available medical evidence, the Tribunal is satisfied that Ms Eyit had impairments during the qualification period. Section 94(1)(a) is therefore satisfied for the purpose of Ms Eyit’s application.
Impairment rating – s 94(1)(b)
The presence of a diagnosed condition does not necessarily mean that there will be a functional impact to which an impairment rating may be assigned. In order to meet the second qualification for DSP as set out in s 94(1)(b) of the Act, Ms Eyit’s impairments during the relevant period must attract a rating of 20 or more points under the Impairment Tables. Section 6(3) of the Impairment Tables provides that an impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
(b) the impairment that results from the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Section 6(4) of the Impairment Tables provides that a condition is considered permanent where it has been fully diagnosed, treated, and stabilised, and is likely to persist for more than 2 years.
In determining whether the condition has been fully diagnosed, treated, and stabilised and is likely to persist for more than 2 years, s 6(5) of the Impairment Tables directs the decision-maker to consider what treatment or rehabilitation has occurred in relation to the condition, and whether treatment is continuing or planned in the next 2 years.
The Impairment Tables are function-based. They describe functional activities, abilities, symptoms, and limitations. From this it follows that the descriptors in each table are measures of the functional impact of an impairment. That is, they are examples that assist in determining the rating that may be assigned to an impairment. They are described in

s 11(1)(c) of the Impairment Tables as the descriptors for that level of impairment.
Sections 10(5) and (6) provide that a common or combined impairment resulting from two or more permanent conditions cannot be assigned more than one rating under the Impairment Tables.
For the purposes of s 94(1)(b) of the Act, three key questions are posed:
(a)    Does each impairment under s 94(1)(a) result from a permanent medical condition, and is the impairment likely to persist for more than 2 years from the date of claim or the qualification period?
(b)    If so, does the impairment cause functional loss and if it does, which Impairment Table applies?
(c)    What is the functional impact of the impairment, and what rating should be applied?
The Tribunal will now consider the claimed impairments in turn.
IMPAIRMENTS
Spinal (neck and back) condition
In his medical report in May 2016, Dr Lahanis described Ms Eyit as suffering from stiff sore neck, lower pain, [and] painful limitation of forceful use of right shoulder, which was caused by lifting heavy box [sic] in 2009. The treatments prescribed include physiotherapy, medications (Voltaren Rapid) and self-help stretches and exercises. However, a JCA report conducted on 25 August 2008 indicated that the injury was sustained in 2006 while Ms Eyit was working for Kmart. In terms of impact, Dr Lahanis initially indicated that Ms Eyit was unable to sit or stand for more than 2 hours without pain.
Subsequent to this, in August 2016, Dr Lahanis described Ms Eyit’s current symptoms as lower back pain, stiffness and bilateral sciatica at rest and after standing ˃15 minutes or walking ˃5 minutes, unable to bend back or lift ˃ 5kg without pain in back. He described her history as gradual onset of lower back pain, bilateral lower limb paraesthesia since 2007 intermittently. Had X-Rays initially but CT can eventually confirmed condition.
An X-Ray of Ms Eyit’s back in July 2009 revealed no focal vertebral lesion, no spondylolysis or spondylolisthesis apparent with disc heights normal in the lumbar spine, no focal sacral abnormality and no significant focal disc or vertebral abnormality with no pedicular erosion and paraspinal mass in the thoracic region. These were largely consistent with another X‑Ray performed on 30 August 2010. A CT performed on 11 August 2016 showed mild L4/5 and L5/S1 disc bulge/degenerative changes. Bulging L5/S1 disc abuts traversing S1 nerve roots in lateral recesses bilaterally with no neural compression and no significant central canal stenosis.
On 29 June 2016, the HPAU report noted that Ms Eyit feels:
…her back pain is worsening. She describes constant bilateral symmetrical widespread pain covering most of her posterior trunk from her neck to her iliac crest. The pain radiates out to her posterior shoulders and around the top of her pelvis to the ASIS… of intensity 4 to 8/10. There are no lower limb symptoms, no pins and needles or numbness and no bladder issues.
The assessor examined Ms Eyit and found there was widespread tissue tenderness over her dorsal trunk and posterior shoulders. Ms Eyit walked with a rigid trunk and reduced arm swing, on observation of there is a significant anterior pelvic tilt, increased thoracolumbar lordosis and mildly increased thoracic kyphosis. The report concluded that she suffered from a mild condition that does place her at an increased risk of chronic pain. It indicated that the condition was fully diagnosed, treated and stabilised, but with no functional effect based on the assessment involving the spinal function, considered that zero points applied under Table 4 - Spinal Function.
The JCA report conducted on 27 July 2016 indicated that Ms Eyit benefited from physiotherapy sessions and showed a reduction of pain in the past when she was participating in the physiotherapy program. The assessor noted that despite a positive response to combined physiotherapy and psychology interventions, Ms Eyit did not complete the program. She was discharged prior to completion for a number of reasons, including an insistence on interventions such as ongoing massage and other passive therapy, despite the progress being made from performing exercises and postural correction. It also noted that Ms Eyit refused to complete further face-to-face review for ongoing physiotherapy, and chose treatment from a chiropractor instead.
From a functional perspective, she was reported to be unable to raise her right arm above chest height and her left arm above shoulder height. However, when asked about dressing, washing, and brushing her hair and other aspects of self-care, Ms Eyit stated that she was independent. It concluded that the impact of spinal functioning was mild, and recommended a rating of 5 impairment points.
Trong To, a registered physiotherapist from Balance Physiotherapy, wrote in a letter dated 6 September 2016 that his examination of Ms Eyit revealed generalised tenderness in the thoracic lumbar spine, right common extensor origin (elbow) and reduced grip strength due to pain.
On 7 September 2016 Mr Armin Drnda, a consultant neurosurgeon, was asked to assess the functional capacity of Ms Eyit. He noted a CT scan performed on 11 August 2016, which did not show any encroachment on the nerves…with a very mild central disc bulge at L5/S1, L4/5 and… mild facet arthropathy at all levels. Mr Drnda also noted preserved heights of discs. He considered the findings of the CT scan of her spine as bordering with normal for her age and it is not particularly premature arthropathy or discopathy. His examination revealed that Ms Eyit had a depressed mood, but she was neurologically completely intact. She had normal reflexes, muscle power and no sensory changes on her body. She had, when distracted, normal range of movement in her neck.
Mr Drnda opined that the applicant does not require surgical treatment, and considered that the most appropriate treatment would be active exercises such as walking, swimming, and exercises in the gym. He indicated that she should have the capacity to work from a physical point of view; however he was concerned by her psychological status being such that it can override anything. He reported that anxiety and depression can make her really incapable of work and can potentiate all her aches and pains. As such, he recommended the need for psychologist and psychiatrist assessment.
During this tribunal hearing, Ms Eyit spoke English clearly. She was able to sit herself and rise from the chair without any discomfort. She sat through the entire hearing without pain or complaints and was observed to be able to freely turn her head. When asked, Ms Eyit expressed that the lower back pain was the key medical issue, as it caused her sleep disturbance. She is generally independent in her living, lives with a flatmate on the second floor and can walk to and from the shops to purchase groceries in five to ten minutes. She can also bend to pick up materials from the floor, but reported pain in doing so.
Overall, the Tribunal noted that Ms Eyit has received medical referrals and assessments in regard to her back and neck condition. The Tribunal was satisfied by the consultant medical report provided by Mr Drnda in September 2016, however, there is inadequate evidence in regard to reasonable management of this condition and good compliance with medical advice by the applicant since 2011. While the physical diagnoses of her spine are clear, the psychological aspect, which is an important part of her functioning, was not fully diagnosed, treated and stabilised. The Tribunal therefore deems it unnecessary to provide an impairment rating.
Shoulder (upper limb) condition
In his reports dated May and August 2016, Dr Lahanis indicated that Ms Eyit has suffered from sub-acromial bursitis and tendonitis in both shoulders since 17 August 2008. He reported Ms Eyit was unable to lift her right arm at or above shoulder level without feeling pain. This was managed by stretching, rest, and non-steroidal anti-inflammatory drugs (NSAIDs), namely Voltaren and Nurofen. Ms Eyit has also been seeing several physiotherapists.
An ultrasound of both shoulders in July 2010 revealed that on the left, there is mild fluid accumulation in the long head of biceps tendon sheath and in the sub-acromial bursa … On the right, there is a little fluid in the long head of biceps tendon sheath … with slight thickening of the tendon, but the tendon was intact. It was concluded that the appearance indicated bilateral bursitis, which extends into the bicipital sheath … with mild bursal impingement on the right.
In 2011 Ms Eyit attended the Orthopaedic Physiotherapy Screening Clinic (OPSC) and Multidisciplinary Service at Cairns Base Hospital. The findings about her shoulder were incorporated in the same report as the spinal pain discussed in preceding paragraphs. The report found there were no indications for further investigations or Orthopaedic surgical opinion.
In the JCA report on 27 July 2016, Ms Eyit indicated that she had previously had cortisone injections that were ineffective. However, there was no evidence in the medical reports to support the timing and effectiveness of the procedure, or Ms Eyit’s interaction with other modes of therapy.
The JCA report concluded that there was no functional impact on activities requiring the use of Ms Eyit’s hands and arms. It was reported that Ms Eyit can pick up, handle, manipulate, and use most objects encountered on a daily basis without difficulty. When asked, she stated that she was able to dress, wash and brush her hair independently. This was supported by Ms Eyit’s account at the hearing, where she added that she is able to comb her hair slowly.
At the AAT1 hearing, it was observed that Ms Eyit could lift both arms up towards her head, and put her hands on her hips.
On 7 September 2016, Mr Drnda opined that her shoulder movements were normal, with some tenderness and mild difficulties with regard to her right shoulder. However, Ms Eyit was able to perform all movements with that shoulder. Mr Drnda reported some tenderness along the trapezius muscles, bilaterally more on the right side.
There were no other reports received from medical specialists looking into this condition.
The Tribunal noted the reports in relation to the shoulder condition before 2012 and from 2016. However, there is an absence of medical evidence prior to the date of cancellation and inadequate evidence in regard to reasonable treatment undertaken by Ms Eyit. The Tribunal is not satisfied that the condition was fully diagnosed, treated, and stabilised, and therefore deems it unnecessary to provide an impairment rating in respect of this condition.
Mental health condition
Although it was noted that mental health was not listed as a condition in his medical report in May 2016, Dr Lahanis listed Ms Eyit as having depression and anxiety in his August 2016 report. He described these conditions as generally well-managed and causing minimal to limited impact. He noted that the applicant had been referred to psychologists on and off since 2009 for depression and anxiety.
It was also noted that Dr Kumar, a general practitioner from the same practice as Dr Lahanis, indicated that Ms Eyit had suffered from stress and post-traumatic stress disorder in 2011. He noted a history of past childhood psychological issues and the possibility of long-term cognitive defects.
In the reports about Ms Eyit’s engagement with the OPSC and Multidisciplinary Service in 2011, clinical leader A. Smith discussed the importance of addressing Ms Eyit’s psychological issues for the purposes of pain education and stress management, as these play a large part in the pain she is experiencing.
On 14 June 2016, the HPAU report stated that Ms Eyit’s mental health condition was not fully diagnosed, fully treated or stabilised. This observation was reflected in the JCA report on 29 June 2016.
In his assessment of 7 September 2016, Mr Drnda opined that the perception of physical incapability is distorted because of her psychological status, and recommended psychological and psychiatric reviews.

Ms Eyit was subsequently referred to Georgia Bailey, a psychologist at Positive Psychology. On 13 September 2016, Ms Eyit completed a 21-item self-report questionnaire which suggested that she was experiencing moderate levels of stress and depression, and a severe level of anxiety. She was provided with psycho-education and supportive counselling, and it was suggested that she would benefit from engaging in psychological treatment for 12 months to aid her recovery.
On 13 September 2016, Associate Professor Dr Shashjit Varma, consultant psychiatrist, diagnosed Ms Eyit with adjustment disorder (chronic) with depressed and anxious mood secondary to chronic lower back pain. In the management section, Dr Varma indicated that Ms Eyit was not on any medication, and was seeing a psychologist regularly. It was noted that neither Dr Lahanis nor Dr Varma had decided to prescribe Ms Eyit with medication at the time of the reports.
At the hearing, Ms Eyit indicated that her condition had been stable until she received the notification about her DSP cancellation. She reported having more panic attacks and has been reviewed by a psychologist and a psychiatrist.
Based on the medical evidence, the Tribunal is not satisfied that Ms Eyit’s mental health condition has been fully diagnosed, treated and stabilised, especially in the period leading up to the date of the DSP cancellation. The Tribunal therefore deems it unnecessary to provide an impairment rating in respect of Ms Eyit’s mental health condition.
CONCLUSION
In summary, Ms Eyit’s spinal, shoulder, and mental health conditions were not fully diagnosed, treated and stabilised at the time of DSP cancellation. As a result, it was not necessary to provide an impairment rating.
As Ms Eyit does not have an impairment rating of 20 points or more under the Impairment Tables, she does not satisfy s 94(1)(b) of the Act.
As a result, there is no requirement to consider whether or not Ms Eyit has a continuing inability to work under s 94(1)(c) of the Act.
The Tribunal affirms the decision under review.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr Bennie Ng, Member.

........................[sgd]................................................
Associate
Dated: 4 July 2018

Date of hearing: 1 December 2017

Applicant: In person

Solicitor for the Respondent: Belinda Lewis, Department of Human Services

[2018] AATA 2091

4 July 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	1 December 2017
Applicant:	In person
Solicitor for the Respondent:	Belinda Lewis, Department of Human Services