Foote and Secretary, Department of Social Services (Social services second review)
[2016] AATA 131
•4 March 2016
Foote and Secretary, Department of Social Services (Social services second review) [2016] AATA 131 (4 March 2016)
Division
GENERAL DIVISION
File Number
2015/1216
Re
Hazel Foote
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 4 March 2016 Place Adelaide The decision under review is affirmed.
..................[Sgd]..............................................
Deputy President K Bean
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Whether applicant’s conditions fully diagnosed, treated and stabilised – Rateable impairments do not attract 20 points under Impairment Tables – Decision under review affirmed.
LEGISLATION
Social Security Act 1991, s 94
Social Security (Administration) Act 1999, Schedule 2, clause 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President K Bean
4 March 2016
The applicant, Ms Foote, has a number of serious medical conditions, including fibromyalgia. On 20 February 2014, she lodged a claim for disability support pension (DSP), which was subsequently rejected by Centrelink. The decision to reject her claim was affirmed upon review by a Centrelink Authorised Review Officer on 15 August 2014, and by the Social Security Appeals Tribunal (SSAT) on 10 February 2015.
On 17 March 2015, Ms Foote lodged an application for review by this Tribunal, giving rise to these proceedings.
STATUTORY FRAMEWORK AND ISSUES
The requirements which must be met before a person is qualified to receive DSP are contained in s 94 of the Social Security Act 1991 (the Act), which, at the relevant time, relevantly provided as follows:
94 Qualification for disability support pension
(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;
…
A person must meet all of these criteria at or within 13 weeks of the date of their claim to qualify for DSP (the assessment period).[1] In this case, the assessment period is from 20 February 2014 to 22 May 2014.
[1] Social Security (Administration) Act 1999, Schedule 2, clause 4.
It follows that the issues for my determination are:
(a)Whether Ms Foote had a physical, intellectual or psychiatric impairment during the assessment period;
(b)Whether Ms Foote had an impairment attracting 20 points or more under the Impairment Tables, which are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination); and
(c)Whether Ms Foote had a continuing inability to work.
DID MS FOOTE HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
There is no dispute that, during the assessment period, Ms Foote had a number of impairments, including fibromyalgia, osteoporosis, and gastro oesophageal reflux disease, and accordingly satisfied subs 94(1)(a) of the Act.
AT THE RELEVANT TIME, DID MS FOOTE HAVE AN IMPAIRMENT ATTRACTING 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
The requirements
The Determination outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition. These include:
·the condition causing the impairment is permanent; and
·the impairment resulting from the permanent condition is more likely than not to persist for more than two years.
Further, for a condition to be considered permanent under the Determination:
·the condition must be fully diagnosed by an appropriately qualified medical practitioner;
·the condition must be fully treated and fully stabilised; and
·the condition must be more likely than not to persist for more than two years.
Subsection 6(5) of the Determination also provides that, in determining whether a condition is fully diagnosed and fully treated, the following is to be considered:
·whether there is corroborating evidence of the condition;
·what treatment or rehabilitation has occurred in relation to the condition; and
·whether treatment is continuing or planned in the next two years.
Subsection 6(6) provides that a condition is fully stabilised if:
·the person has undertaken reasonable treatment for the condition, and it is considered that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
·the person has not undertaken reasonable treatment, but such treatment is not expected to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
·the person has not undertaken reasonable treatment, and there is a medical or other compelling reason for the person not to undertake such treatment.
Which conditions attracted an impairment rating?
Fibromyalgia
The Secretary does not dispute that Ms Foote’s fibromyalgia was fully diagnosed during the assessment period, but contends that it was not fully treated and stabilised.
In support of that position, the Secretary relies on the following passage in the report of Ms Foote’s then treating Rheumatologist and Consultant Physician, Dr Gotis-Graham, dated 26 May 2014:
On the 24th April 2014, I commenced Tegretol 200 mg twice a day. It may take 6-8 weeks to determine whether this medication is effective. The dose of Tegretol may need to be increased to 400 mg twice a day. ... I have suggested that she seek the help of a Rheumatologist or Pain Management Clinic in her new location .[2]
[2] Exhibit 1, T18/192.
At the hearing, Ms Foote said that Dr Gotis-Graham did not tell her during the relevant consultations that she should see another Rheumatologist or a Pain Management Clinic, and she was not aware of this until after the assessment period, when the report was produced. She added that even if Dr Gotis-Graham had mentioned those recommendations to her when she saw him, her General Practitioner would have needed his report in order to refer her to a Pain Management Clinic for treatment. Essentially, she submitted that the treatment prescribed by Dr Gotis-Graham was not contemplated – or at least not known to her – during the assessment period. As I understand it, Ms Foote was subsequently referred to a Pain Management Clinic in the first half of 2015 but, as at the time of the hearing, was still on the waiting list for an appointment.[3]
[3] Exhibit 6.
With respect to Dr Gotis-Graham’s recommendation that she see a different Rheumatologist at “her new location”, Ms Foote submitted that “seeing another rheumatologist is not necessary since I have already trialled everything that was prescribed” and “there will be no significant change in my symptoms”.[4] Ms Foote also submitted that “any further reasonable treatment is unlikely to result in significant functional improvement”.[5] She pointed to the fact that “past treatment with epilepsy drugs was ineffective” and that the “expectancy of the current treatment is unlikely to be any different”. She also referred to Dr Gotis-Graham’s opinion that the functional impact of the condition was expected to “remain unchanged” within the next two years.[6]
[4] Exhibit 4.
[5] Exhibit 4.
[6] Exhibit 6 and Exhibit 1, T18/193.
Having considered the evidence and submissions of both parties on this question, I regard it as finely balanced. I accept that further treatment was contemplated during the assessment period, which ordinarily would lead to a conclusion that the condition had not been fully treated at that time. However, the evidence clearly indicates that the condition was diagnosed in 2002, and that since then Ms Foote has undergone a number of treatments, including “a variety of analgesic and pain modulating medications”, all of which “have failed”.[7]
[7] Exhibit 1, T18/191.
The evidence also includes a clear statement from her then treating specialist, Dr Gotis-Graham that, as at the assessment period, and presumably regardless of the further planned treatment, the effect of the condition on Ms Foote’s ability to function was expected to “remain unchanged”.[8] Further, the Determination allows a condition to be regarded as fully stabilised if the claimant has not undertaken reasonable treatment, but such treatment is not expected to result in significant functional improvement to a level enabling the person to undertake work in the next two years.
[8] Exhibit 1, T18/193.
Having regard to the fact that Ms Foote’s fibromyalgia was diagnosed 12 years before the assessment period, that she has been under specialist management for some time and tried numerous treatments without success, and that as at the assessment period the functional impact of the condition was not expected to change within two years, I have ultimately concluded that the condition is properly regarded as having been fully treated and stabilised as at the assessment period.
As any impairment resulting from other permanent conditions may also be relevant in assessing the impairment rating resulting from this condition, I will return to the question of the applicable impairment rating once I have determined which other conditions attract an impairment rating.
Chronic fatigue syndrome
In a DSP Medical Report dated 11 February 2014, Ms Foote’s then General Practitioner, Dr Le, recorded that Ms Foote suffered from chronic fatigue syndrome (CFS), and that the diagnosis had been confirmed by a specialist, Professor Wakefield (Immunologist).[9]
[9] Exhibit 1, T13/164.
At the hearing, Mr Burgess, who appeared on behalf of the Secretary, contended that the Tribunal should find that this condition was not fully diagnosed, on the basis that there was no evidence before the Tribunal from Professor Wakefield regarding CFS. Mr Burgess also noted that Dr Gotis-Graham had only diagnosed fibromyalgia.[10]
[10] Exhibit 1, T17/183.
However, I am satisfied on the material available to me that CFS was “fully diagnosed” by Professor Wakefield[11], noting that Dr Le also indicated in his report of 11 February 2014 that the relevant specialist report(s) were available and could be provided upon request.
[11] See also Exhibit 2.
As to whether this condition was fully treated and stabilised, Dr Le indicated that Ms Foote’s “future/planned treatment” was the same as the treatment she was undergoing prior to the beginning of the assessment period, namely, “self-stretching exercise”.[12] In subsequent DSP Medical Reports completed outside of the assessment period, Dr Le indicated that Ms Foote was also taking medications in respect of both her CFS and fibromyalgia.[13]
[12] Exhibit 1, T13/164-165.
[13] Exhibit 1, T19/198-199 and Exhibit 2.
Nevertheless, the medical evidence before me with respect to Ms Foote’s CFS is far more limited than the material relating to her fibromyalgia. Dr Le’s report indicates that the condition was diagnosed in 2003 and clearly specialists, including Professor Wakefield, have been involved in treating the condition. However, as Mr Burgess pointed out, there is nothing before me from Professor Wakefield, and in his report of 26 May 2014, somewhat surprisingly, Dr Gotis-Graham made no reference to CFS. Similarly, in a report of 5 June 2015[14], Ms Foote’s then General Practitioner, Dr Senior, also made no reference to CFS.
[14] Exhibit 3.
In these circumstances, despite the information provided by Dr Le, I have concluded that there is simply insufficient evidence before me to allow me to be positively satisfied that, as at the assessment period, Ms Foote’s CFS condition had been fully treated and stabilised.
It follows that no impairment rating can be allocated for this condition.
Osteoporosis
In his report of 26 May 2014, Dr Gotis-Graham recorded:
[Ms Foote’s] osteoporosis does not cause any symptoms. However, the osteoporosis increases her risk of minimal trauma fracture.[15]
[15] Exhibit 1, T18/194.
It follows that even if this condition was fully diagnosed, treated and stabilised (which the Secretary accepts), it would nevertheless attract a nil rating under the Impairment Tables.
Gastro oesophageal reflux disease
Dr Le indicated that this condition causes minimal or limited impact on Ms Foote’s ability to function, and I did not understand Ms Foote to dispute this. Accordingly, even if I was satisfied that this condition was fully diagnosed, treated and stabilised, it would attract a nil rating under the Impairment Tables.
Sleep apnoea
There is very little documentary evidence before me relating to the formal diagnosis of this condition. At the hearing, Ms Foote gave evidence that the condition was diagnosed in 2003 or 2004. She also said that she had used a CPAP[16] machine in the past, although it made her feel worse. Another specialist had recommended surgery which, understandably, she was not prepared to undergo.
[16] Continuous Positive Airways Pressure (CPAP).
Mr Burgess submitted that there was insufficient evidence for the Tribunal to find that Ms Foote’s sleep apnoea condition was fully treated and stabilised. He noted that the only evidence was Ms Foote’s self-report of treatment.
Unfortunately, due to the limited evidence before me, I cannot be satisfied that Ms Foote’s sleep apnoea was fully diagnosed, treated and stabilised during the assessment period. Accordingly I am unable to allocate any impairment points for this condition.
Depression
The Secretary contends that Ms Foote’s depression was not fully diagnosed during the assessment period because there is no evidence of the diagnosis having been made by a clinical psychologist or psychiatrist, as required by the Introduction to Table 5 of the Impairment Tables.
I note that in his report of 6 December 2014, Dr Le referred to Ms Foote having consulted a psychiatrist, Dr Subhas, on 8 September 2014 (i.e. after the assessment period), and “ongoing” consultations with a psychologist, Mr Bartholomew.[17] He also indicated that the relevant reports were available and attached to his report, although unfortunately they are not part of the evidence before me. At the hearing, Ms Foote acknowledged that she had not seen a psychiatrist during the relevant period, but said that she was on medication at that time, which had helped.
[17] Exhibit 2.
As the Secretary has pointed out, before an impairment rating can be assigned for a mental health condition, Table 5 requires the diagnosis to be made by a psychiatrist, or by another medical practitioner with evidence from a clinical psychologist. Unfortunately, Ms Foote did not see a psychiatrist during the relevant period. Dr Le referred to her having “ongoing” consultations with Mr Bartholomew as at December 2014, and Ms Foote confirmed in her oral evidence that she had seen a psychologist and received cognitive behavioural therapy before moving from Sydney to South Australia in December 2014. However, it is not clear on the evidence whether the psychologist she saw was Mr Bartholomew and, if so, whether he is a clinical psychologist. It is also unclear what if any evidence he provided to Dr Le with respect to diagnosis. I note that in an earlier report of 16 July 2014[18], Dr Le simply listed “depression” as one of Ms Foote’s conditions, but did not indicate the date of diagnosis or give any treatment details. This suggests that Ms Foote had not been referred to and was not seeing a psychologist at that time, which is after the end of the assessment period.
[18] Exhibit 1, T19/198.
Accordingly, although I accept that Ms Foote has received treatment for her depression which she has found to be of assistance, unfortunately, as the relevant requirements of Table 5 were not met as at the assessment period on the material before me, I am also unable to allocate any impairment points for this condition.
I should add that, even if those requirements had been met, the evidence before me would not have supported the allocation of any impairment rating for depression. Ms Foote’s evidence was to the effect that her depression had improved and was reasonably well managed, and the main cause of her difficulties and impairments was fibromyalgia. In light of that evidence, and in the absence of any medical evidence corroborating a particular level of impairment during the assessment period attributable to depression rather than fibromyalgia or CFS, I would not have been prepared to give any impairment rating for depression.
Conclusion
As I have found that Ms Foote’s fibromyalgia condition was fully diagnosed, treated and stabilised during the assessment period, I will next proceed to consider the appropriate impairment rating for that condition. As Ms Foote would need to have suffered an impairment attracting 20 points during the assessment period in order to qualify for DSP, I will focus on the question of whether the impairment attributable to her fibromyalgia attracted a rating of 20 points.
Did Ms Foote’s fibromyalgia condition attract a rating of 20 points?
In my view, the appropriate Table for assessing the impairment resulting from Ms Foote’s fibromyalgia condition is Table 1, relating to functions requiring physical exertion and stamina. The criteria for a 20 point rating under that Table are as follows:
Table 1 – Functions requiring Physical Exertion and Stamina
Points
Descriptors
20
There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
As to whether Ms Foote met those criteria at the relevant time, I note that in his report of 26 May 2014, Dr Gotis-Graham summarised the impact of her fibromyalgia condition as follows:
As a result of the fibromyalgia, Miss Foote complains of significant limitations on her ability to function. The major factors limiting her function are fatigue and widespread pains. She lives alone. She is unable to perform heavy gardening. She is unable to stand or walk for more than 20-30 minutes at a time. She is able to vacuum the floors, mop the floors, hang out the washing, make the bed and prepare simple meals. She has easy fatigability. After ten minutes of physical activity, she complains of fatigue and pain and has to stop the physical activity. She needs to rest for four hours each day during the day. She sleeps for 9-10 hours at night. She is able to take care of all her financial responsibilities.[19]
[19] Exhibit 1, T18/192-193.
I note this summary is broadly consistent with Ms Foote’s oral evidence as to the impact of the condition upon her. Indeed, she specifically acknowledged that at all relevant times she had been able to walk around a shopping centre or supermarket, or from a carpark into a supermarket without assistance, and perform light activities. She said she did not use public transport as it was “too tiring”, although she had not attempted this in recent years. I formed the impression that at least part of the reason for her difficulties with public transport was the CFS condition rather than the fibromyalgia. In any event, she acknowledged having travelled by plane from Sydney to Adelaide on the morning of the hearing. I also note that “assistance” in this context refers to assistance from another person,[20] and the evidence before me does not support the proposition that, during the assessment period, Ms Foote required assistance from another person to use public transport.
[20] Department of Social Services, Guide to Social Security Law (Version 1.219, released 8 February 2016), 3.6.3.05 (E).
Accordingly, whilst I accept that during the assessment period Ms Foote may have had difficulty sustaining work-related tasks for a continuous period of 3 hours, I am not satisfied that she met Descriptors (1)(a)(i), (ii), (iii) or (iv) for a 20 point rating under Table 1 during the assessment period, by reference to her fibromyalgia condition.
It follows that, as she was not suffering from an impairment which attracted 20 points under the Impairment Tables, Ms Foote did not satisfy subs 94(1)(b) of the Act and did not qualify for DSP during the assessment period.
I am therefore obliged to affirm the decision under review, and it is unnecessary in these circumstances for me to address the issue of whether, during the assessment period, Ms Foote had a continuing inability to work.
For completeness, I acknowledge that at the hearing Ms Foote made some very coherent, thoughtful and well-expressed criticisms of the Impairment Tables. She contended that the Tables did not adequately reflect the degree of impairment caused by conditions such as fibromyalgia and CFS, the impact of which could be variable and cumulative depending on activity, but nevertheless pervasive and debilitating. However, as I sought to explain to Ms Foote at the hearing, notwithstanding any deficiencies they may have, the Tables are binding on me as a matter of law, and I have no discretion to depart from them.
DECISION
The decision under review is affirmed.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ................[Sgd].............................................
Associate
Dated 4 March 2016
Date of hearing 15 December 2015 Applicant In person Counsel for the Respondent Mr A Burgess Solicitors for the Respondent Sparke Helmore Lawyers
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 Rating
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Fibromyalgia
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