Fiona Thomson and Secretary, Department of Social Services
[2014] AATA 696
•24 September 2014
[2014] AATA 696
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6242
Re
Fiona Thomson
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member N A Manetta
Date 24 September 2014 Place Adelaide The Tribunal affirms the decision under review.
................. [Sgd] ........................
Senior Member N A Manetta
CATCHWORDS
SOCIAL SECURITY - Pensions, benefits and allowances - Disability Support Pension - whether conditions fully treated, diagnosed and stabilised - whether impairments from conditions warrant 20 points under one or more tables - continuing inability to work - decision affirmed
LEGISLATION
Social Security Act 1991, s 94
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Yazdari and Secretary, Department of Social Services [2014] AATA 34
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
Senior Member N A Manetta
24 September 2014
This is an application by Ms Fiona Thomson for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 12 November 2013, which affirmed a decision by an authorised review officer in the respondent’s Department to refuse her a Disability Support Pension (DSP) under the Social Security Act, 1991 (the Act). Ms Thomson asks this Tribunal to reverse the SSAT’s decision. The relevant eligibility criteria for the DSP are specified in the Act, the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Tables Determination), and the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 (the Active Participation Determination). At the hearing, Ms Thomson represented herself; the respondent was represented by Mr Parker. My task is to decide the matter afresh on the evidence before me.[1]
[1] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
BACKGROUND FACTS
I first set out the salient background facts. Ms Thomson, who is 37 years of age, stopped work in 2009. Until that time, she had enjoyed a good career with responsible positions in finance and office administration. She began work some 20 years ago. She stopped work to care for her elderly father, who is now 72 and in poor health. She was also responsible in the past for assisting in the care of her mother, who suffered from Alzheimer’s disease for many years.
In respect of her application for a DSP, Ms Thomson placed great emphasis upon her duties as a carer. She gave evidence that she receives no assistance and has to do everything for her father, except house cleaning. She said she has tried to find work and would look forward to working again, but it is impossible to combine work with her family responsibilities.
Ms Thomson had a particularly unhappy marriage and the ensuing divorce was difficult. In the absence of an income, she has been forced to continue to reside in her ex-husband’s premises and have ongoing contact with him. From her perspective, this is, understandably, an entirely unsatisfactory state of affairs.
REGULATORY REQUIREMENTS
In order to qualify for a DSP, Ms Thomson must have a medical condition (or conditions) that is (or are) fully diagnosed, fully treated, and fully stabilised. Each of these concepts is elaborated in the prescribed requirements.[2] Secondly, any resultant impairment or impairments must attract at least 20 points under the Impairment Tables.[3] Thirdly, if no one table yields 20 points, she must demonstrate participation in a program of support.[4] Fourthly, she must have an incapacity to work for 15 hours per week.[5] I shall deal with each of Ms Thomson’s medical conditions separately.
[2] See the Tables Determination, section 6.
[3] Section 94(1)(a) and (b) of the Act.
[4] Section 94(2)(aa) of the Act.
[5] Section 94(2)(a) and (5)(definition of “work) of the Act.
Pudendal nerve disorder
First, Ms Thomson suffers from a pudendal nerve disorder which has left her with chronic pelvic pain. I find the disorder fully diagnosed, treated and stabilised and eligible, therefore, to be considered.
She takes a drug called Lyrica, which has proved effective as a pain suppressant. Lyrica does leave her somewhat tired and affects her concentration; but on the evidence before me, Lyrica has been largely effective in assisting her to function relatively normally, although her underlying condition is accepted to be incurable.[6] Although Ms Thomson submitted strongly that Lyrica threatened her health, there was no medical evidence before me to support that contention, and her treating GP, Dr Flaherty, gave evidence that he did not believe that to be the case.
[6] Exhibit A2, report of Dr P Flaherty dated 28/9/2013.
The main issue between the parties is whether the resultant impairment or impairments ought to be awarded 20 points (as opposed to the 10 points awarded by the SSAT). If Ms Thomson receives 20 points, she will achieve the requisite number of points for a DSP; and, if all points come from a single table, she will be exempt from the obligation to have participated in a program of support.
In my opinion, only Table 10 is relevant. I find that 20 points is not an appropriate award for the impairment caused by Ms Thomson’s pudendal nerve disorder under this table. The criteria alongside the 20-point classification read as follows:-
“There is a severe[7] functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1)At least two of the following apply to the person:
(a)the person’s attention and concentration at a task is frequently (at least once every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;
(b)the person is unable to sustain work activity or other tasks for a total of more than 3 hours per day, even with regular breaks, due to symptoms of the digestive or reproductive system condition;
(c)the person’s condition may affect the comfort or attention of co-workers;
(d)the person is frequently (twice or more per month) absent from work, education or training activities due to the digestive or reproductive system condition.”
[7] Emphasis in the original.
I note that it is necessary that any impairment caused by a condition be corroborated.[8] Ms Thomson’s condition has certainly been verified by medical practitioners, but the degree of the impairment has not been. There is insufficient corroborative evidence that at least two of the criteria specified in paragraphs (a) to (d) apply to Ms Thomson in respect of the pudendal nerve disorder alone. Dr Flaherty’s evidence concerning her poor health focussed on her psychological problems. Indeed, I do not have before me corroborative evidence that any one of these criteria is satisfied.
[8] See Introduction to Table 10 and sections 4(2)(b) and 5(3)(c) of the Tables Determination.
On the evidence before me, I would not award 20 points to the impairment caused by the disorder in any event. I note the respondent conceded that 10 points would be an appropriate award. I rather doubt that I could award 10 points on the evidence before me; but it does not matter for the purposes of assessment what lesser number is awarded in respect of this condition. It is sufficient to conclude that the impairment arising from condition does not warrant 20 points. I would note that Ms Thomson’s own evidence of the impact of her disorder does not support a conclusion that paragraphs (b), (c), or (d) is satisfied. I am not satisfied that paragraph (a) is satisfied, but even if I were, at least one of these three paragraphs would also have to be satisfied. I acknowledge that Ms Thomson gave evidence that she would experience discomfort after one to two hours of sitting in an office and have to get up and walk around for five to ten minutes. This evidence does not support a submission that one of these three paragraphs is satisfied. I further note Dr Flaherty’s evidence that he believes Ms Thomson could return to work in her former position were her psychological problems to be successfully addressed and resolved. In his view, the effects of the drug Lyrica do not stand in her way.
Migraine and tension headaches
Secondly, Ms Thomson suffers from migraine and tension headaches. According to the case law in the Tribunal,[9] the question of whether this condition is fully diagnosed, treated, and stabilised is to be asked and answered as at the date of application for the DSP (in this case, 5 August 2013).[10] I do not find this condition was fully diagnosed, treated and stabilised on this date.
[9] See, for example, Re Yazdari and Secretary, Department of Social Services [2014] AATA 34 at [35]ff.
[10] Or in any event at a date falling 13 weeks after application is made.
Indeed, Ms Thomson’s condition was not fully diagnosed, treated, and stabilised at the date of the hearing before me. The most recent report from her specialist, Mr Lee dated 14 January 2014,[11] indicates that she had been just begun treatment on a drug called Metoprolol, and that her condition ought to be reviewed again in three to four months’ time. In my opinion, both the aetiology of Ms Thomson’s headaches and migraine, their proper ongoing treatment, and their prognosis, have yet to be fully assessed by medical practitioners.
[11] Exhibit A3, p.2.
I would note also Ms Thomson’s evidence that she has not had an attack for some time since beginning with Metoprolol.
Psychological Condition
Ms Thomson’s treating GP, Dr Flaherty, who gave evidence at the hearing, described her as psychologically “decompensated”. I understood him to mean that she has overarching psychological problems that prevent her from functioning normally. He does not believe Ms Thomson’s physical conditions by themselves explained her problems fully. He believes the main obstacles to her return to work are psychological in origin. I accept that evidence.
I note Ms Thomson consulted a psychiatrist, Dr Kelly, in relatively recent times. It is clear from his two reports,[12] that the incapacity Ms Thomson feels she has stems from both physical and psychological sources. The psychological factors include her unsatisfactory marriage and the difficulties of her divorce. His opinion is that Ms Thomson’s pain is “likely a conversion disorder”[13] and goes on to explain that she has unresolved difficulties concerning her relationship with her ex-husband.
[12] Exhibits A2 and R3.
[13] Exhibit R3.
She was first referred to Dr Kelly in October 2013 and continued to consult him into early 2014. Again, given the requirement that I assess her eligibility no later than 13 weeks after her application, I am not able to award any points in respect of the impairment caused by the conversion disorder.
In any event, on the evidence before me, I would not conclude that her psychological condition was fully stabilised at the date of hearing. Dr Kelly’s conclusion in his most recent report of 12 February 2014 is as follows:
“This [i.e., her inability to deal with her psychological issues] is further complicated by her unwillingness to engage in any vocational activities until such time as her pain disorder has resolved. Given the nature of this, it is my opinion that there is unlikely to be any great change in the foreseeable future.”[14]
Dr Kelly does not go so far as to assert that reasonable treatment is unlikely to result in “any significant functional improvement to a level enabling the person to undertake work in the next 2 years”. This conclusion is required, however, before a condition may be considered “fully stabilised” and eligible to be considered for the awarding of points.[15]
[14] Exhibit R3.
[15] Section 6(6)(a) of the Tables Determination.
Accordingly, I do not find that Ms Thomson’s psychological condition is eligible to be considered.
CONCLUSION WITH RESPECT TO IMPAIRMENT
I have found that Ms Thomson is not eligible to be awarded 20 points in respect of the impairment caused by the one medical condition I am entitled to consider, the pudendal nerve disorder.
PROGRAM OF SUPPORT
Here, I need only note that unless Ms Thomson receives 20 points under a single table, she must participate in a program of support before applying for a DSP. She has not provided evidence that she has done so to date.
CONTINUING INABILITY TO WORK
So far as her continuing inability to work is concerned, I note that Dr Flaherty was quite clear in his evidence that, in his view, without the other psychological stressors in her life, Ms Thomson could resume work, and, indeed, she could return to her former career. Her medication Lyrica does not stand in her way.
I wish to make that point expressly because it seems clear that if her psychological difficulties can be addressed successfully, Ms Thomson will be fit to resume her working life. I appreciate that she will then have to address the very difficult personal question of her father’s ongoing care. She will have to decide whether she will seek employment or continue to devote significant time to him. If she chooses the latter, she will not be eligible for a DSP because this particular social security benefit is not payable to a person who devotes his or her life to family obligations, no matter how reasonable that choice is. I make this last point because it did appear to me at the hearing that Ms Thomson may have wrongly believed that her father’s situation was relevant to the assessment of her eligibility to receive a DSP.
DECISION
In all the circumstances, I affirm the decision under review.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta ........................................................................
Administrative Assistant
Dated 24 September 2014
Date of hearing 16 June 2014 Applicant In person Advocate for the Respondent Mr A Parker Solicitors for the Respondent Program Litigation and Review Branch Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Disability Support Pension
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Impairment Points
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Incapacity to Work
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