Fisher and Secretary, Department of Social Services (Social services second review)
[2015] AATA 792
•12 October 2015
Fisher and Secretary, Department of Social Services (Social services second review) [2015] AATA 792 (12 October 2015)
Division
GENERAL DIVISION
File Number(s)
2014/5013
Re
Katherine Fisher
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member
Date 12 October 2015 Place Sydney The decision under review is affirmed.
........................................................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
12 October 2015
BACKGROUND
On the 6 March 2014 Ms Fisher lodged a claim for Disability Support Pension (“DSP”) on the basis that she suffered medical conditions which were having an impact on her ability to function.
Ms Fisher’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the SSAT on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular she did not satisfy s 94(1)(b) of the Act, in that her impairment rating was not 20 points or more under the Impairment Tables.
In these proceedings Ms Fisher seeks review of the decision of the SSAT dated 22 July 2014 which found that she had a total rating of zero points under the Impairment Tables.
At the hearing Ms Fisher was self-represented and able to give oral evidence.
ISSUES
In order to qualify for DSP, Ms Fisher must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 6 March 2014 and 5 June 2014 (the claim period).
Section 94(1) of the Act provides that 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;
…
The Respondent concedes and the Tribunal accepts that Ms Fisher suffers medical conditions that cause impairment and therefore satisfied s 94(1)(a) of the Act at the time of her claim for DSP.
The relevant conditions for consideration by the Tribunal are conditions involving spinal function (lumbar spine), lower limb function (right knee), mental health function (depression), and diabetes.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)),
·fully treated (paragraph 6(4)(b)),
·fully stabilised (paragraph 6(4)(c)), and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The Introduction to each relevant Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Also, the Introduction to Table 5 of the Determination, which is to be used where a “person has a permanent condition resulting in functional impairment due to a mental health condition”, states that 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 a psychiatrist)”.
The Respondent submits that during the claim period the Ms Fisher did not satisfy section 94(1)(b) or (c) of the Act.
Therefore, the Tribunal must decide whether during the claim period Ms Fisher had a rating of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.
MEDICAL CONDITIONS
Mental health
Ms Fisher told the Tribunal that she had suffered mental health symptoms after her mother died about three to four years ago was seen by a psychiatrist and received treatment at the Aboriginal Health Centre in Redfern. She was started on antidepressant medication which she continued since then. More recently she has been attending the Marrickville Community Mental Health Service (MCMHS) but expressed frustration with this service because she is seen by a different person on each visit and is asked to repeat her history every time.
In a Centrelink Medical Report dated 24 February 2014 Dr Rothonis, GP, lists “depression” as a medical condition that is generally well managed and causes minimal or limited impact but provides not details as to treatment or functional impairment.
In a Centrelink Medical Certificate dated 1 April 2014 and 22 July 2014 Dr Gooley, GP, does not make any reference to any mental health symptoms or mental health condition.
In a brief letter dated 23 October 2014 Ms Spatz, Psychologist confirms that Ms Fisher is currently engaging with the MCMHS and “is suffering from a mental illness, for which she is regularly attending treatment”. Ms Spatz provides no other relevant information as to diagnosis, treatment or functional impairment.
In my view, there is insufficient medical evidence to satisfy the Tribunal that during the claim period Ms Fisher’s mental condition was fully diagnosed, fully treated and fully stabilised so a rating under the Impairment Tables cannot be applied.
Lower Limbs
Ms Fisher told the Tribunal that in 2013 she “fractured” her right knee cap when she fell over at home. She was placed in plaster for several weeks but when the plaster was removed the fracture had apparently not healed. She said that in January 2014 when assaulted at home she was pushed so that she fell over and injured her lower back and both knees.
In his report of 24 February 2014 Dr Rothonis lists “severe arthritis of knees and spine, exacerbated by fall” as a condition with most functional impact and notes clinical features as “severe pain in knees and back for over 1 year with, exacerbation from fall in July 2013 and 24/1/2014”.
In a letter to Dr Gooley dated 3 September 2014 Dr Sekel, Orthopaedic Surgeon, states:
Thank you for referring Kathy Fisher who slipped on pavement at home in June last year being diagnosed with a fractured right patella having given a history of having a fractured patella on the same side in 2012.
Kathy has it all wrong!
She has bilateral tracking patellae…there is secondary degenerative change in the right patellofemoral joint radiologically, “the fracture” being a stress osteophyte commonly seen in this condition.
She is significantly overweight throwing extra stress through already mildly valgus knees.It is noted that Kathy has been on Oxycontin for the last two years in increasing and then recently decreasing dose for her knee pain.
Appling a Zimmer splint immediately allowed Kathy to walk without pain or a crutch for the first time in at least 12 months, and I am sure she will now be able to come off the Oxycontin.
…Kathy may well benefit sufficiently from an arthroscopic lateral release of the right patella mechanism but if problems persisted an open patella balancing procedure would be necessary…
It is my opinion that at this stage there is no need to consider knee replacement…
At the hearing Ms Fisher told the Tribunal that over the last 18 months she has reduced her weight by about 25 kgs, stopped taking Oxycontin and is able to walk with the knee splint and no crutches for at least 50 metres but still has pain.
In my view, the report of Dr Sekel, three months after the end of the claim period clearly demonstrates that during the claim period Ms Fisher’s lower limb condition was not fully diagnosed, not fully treated and fully stabilised so that a rating under the Impairment Tables cannot be applied.
Spine
Ms Fisher told the Tribunal that prior to the injury to her back, sustained at the time of the alleged assault in January 2014, she had not been troubled by back pain despite working in an aged-care facility where she had to do a lot of heavy lifting. She claims that following that injury she has suffered severe back pain that has persisted despite treatment with several “cortisone injections”, is not relieved by painkillers and has been getting more severe over time.
Prior to the date of claim an MRI scan performed on the 17 February 2014 of the whole spine revealed several abnormalities including evidence of “L4/5 disc bulges to a minimal degree…ossification of the posterior longitudinal ligament in the cervical spine…mild changes of spondylosis and facet joint osteoarthritis in the thoracic spine….small disc protrusions at T12/L1 without evidence of neural compression….”and at L5S1 “ a small posterocentral annular bulge without evidence of neural compression, or spinal or forminal stenosis”.
In a letter dated 21 February 2014 Dr Tong, Rheumatologist describes the MRI scan of the spine as showing “ossification of the posterior longitudinal ligament in the cervical spine. This causes some flattening of the anterior aspect of the spinal cord otherwise there are some mild degenerative changes in the thoracic and lumbar spine”. He states that he suspects that Ms Fisher “has had an exacerbation of symptoms related to cervical myelopathy, maybe related to the alleged assault”.
Dr Tong does not discuss treatment and provides no assessment of functional impairment but recommends an opinion from a neck surgeon.
In his report of 24 February 2014 Dr Rothonis provides no details with respect to the functional impact of Ms Fisher’s spine condition and makes no reference to treatment apart from a list of medications which are used to treat pain in the spine and the knees.
In a letter dated 9 May 2014 Dr Tong states that Ms Fisher “continues to have pain involving her right knee as well as her neck and spine” and that he has arranged two appointments for neurosurgical review which she did not attend. He notes that her pain management has been complex and referred her to the “Chronic Pain Service at the hospital”.
The medical evidence in respect of Ms Fisher’s spine condition diagnosed by MRI scan can best be described as incomplete and does not, in my view, provide a satisfactory explanation for the claimed persistence and severity of Ms Fisher’s back pain.
Accordingly, I am not persuaded that there is sufficient evidence to sustain a conclusion that during the claim period Ms Fisher’s spine condition was fully diagnosed, fully treated and fully stabilised so that a rating under the Impairment Tables cannot be applied.
Diabetes
There insufficient evidence before the Tribunal to draw any conclusions about this condition.
DECISION
For reasons set out above, the Tribunal is satisfied that during the claim period Ms Fisher’s impairment was not 20 points or more so that she did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.
The decision under review is affirmed
I certify that the preceding 35 (thirty-five ) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member ..............................[sgd]..........................................
Associate
Dated 12 October 2015
Date(s) of hearing 1 October 2015 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Interpretation
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