Fillery and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 572
•15 August 2013
[2013] AATA 572
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4578
Re
Robyn Fillery
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 15 August 2013 Place Sydney The decision under review is affirmed.
.........................[SGD].............................
Deputy President RP Handley
CATCHWORDS
SOCIAL SECURITY - disability support pension – whether applicant’s injuries fully diagnosed, treated and stabilised – applicant’s knee condition not fully treated and stabilised – decision under review affirmed
LEGISLATION
Social Security Acts 1991 s 94
Social Security (Administration) Act 1999 sch 2, cl 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President RP Handley
15 August 2013
Ms Fillery (the Applicant) has applied for a review of a Social Security Appeals Tribunal (SSAT) decision affirming a decision made by a delegate of the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent) rejecting Ms Fillery’s claim for a Disability Support Pension (DSP).
BACKGROUND
Ms Fillery is aged 50 years. She has been receiving a Carer Allowance since 31 August 2005 and Newstart Allowance since 6 April 2012. Before ceasing work in January 2012, Ms Fillery worked as an ‘Assistant in Nursing’ at an aged care facility.
On 9 February 2012, Ms Fillery lodged a claim for a DSP in respect of the conditions “Lower Back Injury, Left Knee Injury, Right Knee Injury”, accompanied by a Centrelink Medical Report form completed by her general practitioner, Dr T Kemper. Dr Kemper diagnosed her conditions as being Bilateral Knee Arthritis and Degenerative Lumbosacral Spine. A Job Capacity Assessment Report was completed on the same day by a registered occupational therapist. The Assessor assessed Ms Fillery’s knee osteoarthritis as being fully diagnosed but not fully treated as it was likely her symptoms would be significantly improved by bilateral knee replacement surgery. The Assessor found Ms Fillery’s back condition to be fully diagnosed, treated and stabilised but assessed the condition as attracting nil impairment points under Table 4 of the Impairment Tables – Spinal Function. The Assessor found that Ms Fillery would be unable to work more than 14 hours per week for the following year and would then, after receiving further treatment for her knee osteoarthritis, have a baseline work capacity of 15-22 hours per week. Ms Fillery’s application for DSP was subsequently rejected on 6 March 2012.
On 13 March 2012, Ms Fillery requested a review of the rejection decision, which was affirmed by the original decision-maker on the same day. Ms Fillery sought a further review by an ARO, stating that she is unable to walk without crutches or a walking stick and has a permanent limp since having surgery on her right knee on 7 February 2011. On 29 March 2012, Ms Fillery underwent a Functional Capacity Evaluation, with the assessor finding that she was unfit for work until she had received further treatment for her conditions. Ms Fillery provided a letter from her treating orthopaedic surgeon, Dr M Dixon, dated 4 April 2012 supporting her claim for benefits during the period before the Applicant has bilateral patellofemoral replacement surgery and in the ensuing recovery period. On 26 June 2012, an ARO affirmed the decision under review but assessed Ms Fillery’s back condition as attracting 5 impairment points under Table 4 of the Impairment Tables.
Ms Fillery provided further medical reports to Centrelink following the rejection decision, including a Medical Certificate from Dr Kemper, dated 17 July 2013, noting that her right knee pain and arthritis were long term conditions and likely to persist for longer than two years, and a copy of a medical report from Dr S Lindstrom, a Physician specialising in respiratory medicine, to Dr Kemper, dated 14 August 2012, diagnosing Ms Fillery with obstructive sleep apnoea. Sleep apnoea was not mentioned by Ms Fillery in her DSP claim form, and Dr Lindstrom’s report was provided to Centrelink outside the of the 13 week period from the time Ms Fillery lodged her claim for a DSP.
Ms Fillery applied for a review of the ARO’s decision by the SSAT which, on 20 September 2012, decided to affirm the decision. On 9 October 2012, Ms Fillery lodged an application for a review of the SSAT decision by the Administrative Appeals Tribunal.
RELEVANT LAW AND ISSUES
Section 94 of the Social Security Act 1991 (Cth) (the Act) states relevantly that:
(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;
…
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B)--the person has actively participated in a program of support within the meaning of subsection (3C); and
(a) in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(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.
…
(3B) A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Work is defined in s 94(5) as follows::
"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.
The relevant Impairment Tables are those in effect at the time Ms Fillery made her claim, which are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the “Impairment Tables”).
The Impairment Tables contain rules for applying the Tables. Paragraph 6 states relevantly:
Assessing functional capacity
(1) The impairment of a person must 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.
Applying the Tables
(2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note: For additional information that must be taken into account in applying the Tables see section 7.
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any 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; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Impairment has no functional impact
(8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Schedule 2, clause 4(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) requires that Ms Fillery’s qualification for DSP be assessed as at the date she made her claim for DSP or in the 13 week period following the claim. Her claim was lodged on 9 February 2012. The relevant period, therefore, is 9 February 2011 to 10 May 2011.
There is no dispute that Ms Fillery suffers from a physical impairment, namely “bilateral knee osteoarthritis and degenerative lumbar spine”, thereby satisfying s 94(1)(a) of the Act. At issue is whether her impairments should attract an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)) and, if so, whether Ms Fillery has a continuing inability to work (s 94(1)(c)).
MS FILLERY’S CASE
Ms Fillery said she first injured her back in 2001 when she slipped on wet tiles at work and fell on her right side. After a couple of months off work her back settled and she returned to work, taking Panadol where necessary. In 2006, she was pushing a patient in a wheelchair when she popped a disc in her back. Ms Fillery said she had a MRI and an injection in her back and returned to work after some time off, but her back has never been the same since. Her knee problems aggravate her back pain and if she sleeps in the wrong position, she has difficulty getting out of bed. She avoids bending and despite having physiotherapy and hydrotherapy, her back “goes on her” from time to time, sometimes when she is walking.
Around 2010, her right knee started to play up. Ms Fillery said she consulted Dr Dixon who performed an arthroscopy on 7 February 2011. After the operation, her knee did not feel right: she could not stand or walk properly and could only walk using crutches. She went back to see Dr Dixon several times in 2011 to complain about her continuing knee problems but Dr Dixon said she was impatient and sought to reassure her that it would get better. Ms Fillery had previously had an arthroscopy on her left knee in 2010 and, with the benefit of physiotherapy, it had settled, enabling her to walk, after about eight weeks.
Ms Fillery said both knees are now about the same but with the right knee she can only walk with a limp. This is despite having also had physiotherapy for this and, at her request, a cortisone injection, which she hoped would help her get back to work. Ms Fillery said she had spoken with Dr Dixon and another orthopaedic surgeon she consulted for a second opinion, Dr SP Tan, about having knee replacement surgery but they have both said she is too young and, at her age, the joints wear too quickly requiring further knee replacement surgery later on. The Tribunal has been provided with a further report from Dr Dixon (13 December 2012) and Dr Tan (4 December 2012) confirming this. This is also discussed by Dr A Home, Occupational Physician, in a report dated 15 February 2012 prepared for her Income Protection Insurer.
Ms Fillery described the treatment she was undertaking for her back and knee conditions at the relevant time in February to May 2012. She was having physiotherapy, hydrotherapy and trying to lose weight in accordance with a ‘GP Management Plan and Team Care Arrangements’, dated 14 September 2011, under the care of Dr Kemper, Dr Dixon and Ms N Robson, an exercise physiologist at the University of Wollongong, a physiotherapist and an osteopath. Ms Fillery ceased hydrotherapy at a pool in Helensburgh when the weather became colder in April 2012. She continued having physiotherapy, managed to lose about 5 kgs in weight, and was doing exercises at home. By February 2012, she had stopped using crutches and was using a walking stick for support, although still with a limp with her right leg. She also wears a knee brace on her right knee for support.
Ms Fillery said without a walking stick, her knees are liable to fold under her so that she falls. It can happen at any time, including recently in Woolworths, and yesterday as she was about to get into her car. She avoids stairs and slopes because of the extra pressure on her knee joints which causes increased pain. She can walk for about 15 minutes but after this, the pain becomes worse. She is never free of pain. She cannot kneel or bend her knees and her legs tend to become swollen and her right foot tingly if she does too much. Ms Fillery takes Endone every second night and about 4 Panadol Osteo tablets daily. These do not help much. She also takes ordinary Panadol.
Ms Fillery has recently consulted Dr P Annett, Sports Physician, on referral from Dr Kemper. In a report dated 22 April 2013, Dr Annett notes having discussed with Ms Fillery “the value of pain” management to try and break her pain cycle and encourage more significant improvement. Ms Fillery said she understood Dr Annett to mean that pain management meant taking further medication and she does not want to take more medications believing this will be detrimental to her health. She also discussed this with Dr Kemper who appears not to have encouraged this. Ms Fillery said about a year ago she had telephoned the Pain Clinic at Port Kemba Hospital of her own accord but was told that she would have to wait 6 to 12 months for a place on the program.
Ms Fillery said she is still trying to lose weight but is finding this difficult because of the present stage in her life. She also continues to have physiotherapy. But the levels of pain she experiences now is much the same as it was in February 2012 despite having tried to do everything to improve her condition.
Ms Fillery said apart from her back and knee conditions, she also suffers from Sleep Apnoea and, in January 2013, had surgery to pull her chin forward to improve her air flow. She is going back to the surgeon at the end of the month but has not noticed any difference: she still feels lethargic and tired.
Ms Fillery said she cares for her mother, involving up to about two hours per day. A lot of this is supervision of her mother but she also takes her mother to medical appointments, and does the shopping. Ms Fillery has an automatic car and drives short distances to the shops and medical appointments. She can drive for a maximum of 25 minutes. On one occasion, she went to Miranda Fair Shopping Centre which was “a disaster”, because she had to hang on to the railings to get back to her car. Ms Fillery said she can shower and wash her hair with some difficulty and she uses slip on shoes because of the difficulty of putting her shoes on.
Ms Fillery said that an Assistant in Nursing, her duties included showering, toileting, dressing, feeding and nursing patients in the aged cared facility. At the time she stopped work, she was working 19 hours a week because she could not work fulltime and receive a Carer Allowance. In the period before she stopped work, she was taking Endone to be able to continue working with the pain. Ms Fillery said she can use a computer and can type letters and emails but she is a slow learner.
Ms Fillery said she attended the Commonwealth Rehabilitation Service (CRS) in Wollongong to undertake the support program they provide, but had to stop this because of pain and was suspended from the program. She thought the letter received from CRS meant that she was exempt from the program.
Ms Fillery was supported at the hearing by her friend Gregory Pike. Mr Pike, who lives in Warilla, said he had been her friend for about 2 and a half years. He works as a bookkeeper and sees Ms Fillery on weekends. They go for short walks together and short drives and try and do social things. However, he is aware that Ms Fillery has pain all the time and if they drive anywhere they need to stop for breaks every 30 minutes. Mr Pike said he encourages her to do a little more exercise to try and keep mobile.
Ms Fillery said her conditions are not temporary – they are ongoing, and because of her incapacity, it is not possible for her to meet the requirements for Newstart Allowance which she is currently receiving. She said her back and knee conditions have been fully diagnosed, treated and stabilised. She had undertaken extensive rehabilitation programs – physiotherapy and hydrotherapy, weight loss, pain medication and injections – none of these have had any significant benefit to date.
Ms Fillery submitted that the Impairment Tables fail to recognise the degree of her impairment, which has not changed over the past 24 months. She cannot work because her back and knees fail her all the time during normal daily activities. Ms Fillery said she depends on a walking stick for support and is unbalanced when not supported. She has difficulty standing or sitting, or driving a car for any period of time and suffers constant pain from her osteoarthritis. She would be a risk for any employer.
Ms Fillery said she has discussed knee replacement surgery with Dr Kemper and is concerned that it has a success rate of 30%, is invasive and may be detrimental.
THE RESPONDENT’S SUBMISSION
Ms Heggen, for the Respondent, discussed the medical evidence noting that in the period February to March 2012 Ms Fillery was still undergoing treatment to try and improve her condition – physiotherapy, hydrotherapy (until April 2012) and was still trying to lose weight in accordance with the Care Plan. Ms Heggen suggested that MS Fillery may have misunderstood what is entailed in pain management treatment, referred to by Dr Annett in his report of 22 April 2013. Ms Heggen noted that Ms Fillery had contacted Port Kembla Hospital about their pain management program about 12 months ago but had not taken it any further.
With regard to knee replacement surgery, Ms Heggen said there is no evidence to support the low success rate for such surgery referred to by Ms Fillery. Her treating orthopaedic specialists, Dr Dixon and Dr Tan have referred to this as treatment to alleviate her knee condition, albeit in the future. Moreover, Dr Tan, in a report dated 8 November 2011, said he did not think that Ms Fillery had at that time maximised her rehabilitation.
Ms Heggen contended that give Ms Fillery’s evidence about her daily activities, an impairment assessment of 5 points under Table 4 for her back appears to be appropriate. She can still undertake self-care tasks, care for her mother, take her mother to medical appointments and do the shopping. If her condition has deteriorated and, for example, she is unable to sit in or drive a car for at least 30 minutes, it may be that her back condition should be assessed at 10 impairment points.
Ms Heggen said it is clear from the evidence that Ms Fillery has a good work ethic. While Ms Fillery states she is a slow learner, she was, nevertheless, able to undertake training to be an Assistant in Nursing and secure and maintain employment. She can also use a computer and type. Ms Heggen contended that Ms Fillery has transferable skills that with the support of a Disability Services Provider should enable her to work 15 hours a week. Ms Heggen noted that Ms Fillery has not completed a program of support, having been suspended from this by the CR’s until she has provided medical evidence to support her resuming this.
Thus, Ms Heggen contended, Ms Fillery does not satisfy the requirements of s 94(1)(b) and (c) of the Act.
DISCUSSION
The first issue for the Tribunal is whether Ms Fillery satisfies s 94(1)(b) of the Act: does she have an impairment of 20 points or more under the Impairment Tables? With regard to Ms Fillery’s bilateral knee condition, at issue is whether this condition is fully diagnosed, treated and stabilised as required by the Rules for applying the Impairment Tables at paragraph six.
I have no doubt that Ms Fillery has made significant efforts to improve her knee condition including physiotherapy, hydrotherapy, weight loss and medication. She has consulted a range of medical specialists and therapists in undertaking treatment. At the relevant time in February to May 2012, her evidence is that she was still pursuing various treatment options pursuant to the Care Plan dated 14 September 2011. By February 2012, Ms Fillery had progressed from using crutches to using a walking stick and the report from Dr Tan dated 8 November 2011 suggests that at that time, there was still a possibility that improvement in her condition might be achieved.
While both Dr Dixon and Dr Tan have indicated that it is too early to contemplate knee replacement surgery for Ms Fillery, this remains an option. I am not satisfied that Ms Fillery’s statement that the success rate for such surgery is only 30% is accurate, given the lack of supporting evidence. Moreover, given that a significant problem for Ms Fillery is chronic pain, it appears that the possible benefits of undertaking a pain management program have not been adequately explored.
Thus, while I acknowledge Ms Fillery’s obvious frustration arising from the difficulty of her meeting Newstart Allowance requirements given her current knee condition when viewed in the context of the impairment attributable to her back. I am not satisfied that, at the relevant time, her knee condition was fully treated and stabilised. I also acknowledged that if her condition were reassessed after the further options of pain management and knee replacement surgery have been fully explored and documented, a different view might be taken.
With regard to Ms Fillery’s back conditions, her evidence as to her daily activities indicates an impairment assessment of 5 points or at most 10 points under Table 4 is appropriate. Her evidence of self-care, care for her mother, shopping, driving and attending medical appointments indicates that her back as a mild to moderate functional impact on her activities involving spinal function.
Ms Fillery also suffers from sleep apnoea although the evidence relating to this is of the period since February to May 2012, Ms Fillery have had corrective surgery in January 2013 and waiting further consultation with her treating specialists. This condition was not fully diagnosed, treated and stabilised at the relevant time.
Thus, I am not satisfied that for the period 9 February 2012 to 10 May 2012 Ms Fillery’s impairment attracted 20 points or more under the impairment tables– she did not satisfy s 94(1)(b) of the Act. This means that she was not then qualified for a DSP.
With regard to whether Ms Fillery has a continuing inability to work as required by s 94(1)(c) of the Act, the report from Dr Home, Occupational Physician, dated 15 February 2012, indicates that at the relevant time, he was satisfied that she was totally incapacitated for work “on the basis of her subjective presentation of disability”. Dr Home said:
The prognosis for a return to paid employment is guarded, noting the severity of her subjective complains and the advice she had received from her treating surgeon that she is not a suitable candidate for right knee joint replacement due to her age.
Whether Ms Fillery has a continuing inability to work is not, in my view, clear on the present evidence, noting, in particular, that she had not, apparently, been formally exempted from undertaking a program of support. I therefore decline to make any finding on this issue, noting that it is not necessary for me to do given that I have found that Ms Fillery does not satisfy s 94(1)(b) of the Act.
In conclusion, while I accept that Ms Fillery has made significant and genuine efforts at rehabilitation, I am not satisfied that at the relevant time all the options for treatment have been fully explored and documented, and thus Ms Fillery was not then qualified for a DSP.
DECISION
The decision under review, to reject Ms Fillery’s claim for a DSP, must therefore be affirmed.
I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley. ...........................[SGD]......................
Associate
Dated 15 August 2013
Date(s) of hearing 9 August 2013 Date final submissions received 9 August 2013 Applicant In Person Advocate for the Respondent Ms G Heggen, solicitor Solicitors for the Respondent Department of Human Services
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