Ford and Secretary, Department of Social Services (Social services second review)
[2019] AATA 1299
•14 June 2019
Ford and Secretary, Department of Social Services (Social services second review) [2019] AATA 1299 (14 June 2019)
Division:GENERAL DIVISION
File Number:2017/7609
Re:Sonja Ford
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:14 June 2019
Place:Brisbane
The Tribunal affirms the decision under review.
.....................[SGD]...........................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period, whether residency requirements are met, whether entitled to DSP under Agreement on Social Security between Australia and New Zealand – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (International Agreements) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services[2015] FCA 1123
Pickering and Secretary, Department of Social Services [2018] AATA 4223 (13 November 2018)
Secretary, Department of Social Services and Stretch [2017] AATA 1429 (4 September 2017)REASONS FOR DECISION
Member D Mitchell
14 June 2019
INTRODUCTION
Ms Sonja Ford (the Applicant) was born in New Zealand, is a citizen of New Zealand and moved to Australia on 28 March 2010. The Applicant holds a temporary subclass 444 visa.[1]
[1] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 11, paragraph 58.
On 20 February 2017, the Applicant lodged a claim for the Disability Support Pension (DSP).[2]
[2] Exhibit 1, T Documents, T 12, pages 82-111, DSP claim form.
Due to the Applicant’s residency status, her claim for DSP was assessed under the Social Security Agreement between Australia and New Zealand.
The Applicant’s claim was rejected on 16 June 2017,[3] on the basis that the Applicant did not meet the qualification requirements. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 4 July 2017.[4]
[3] Exhibit 1, T Documents, T 15, pages 119-121, Centrelink Notice: Rejection of DSP claim.
[4] Exhibit 1, T Documents, T 16, pages 122-130, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), who affirmed the decision of the ARO on
22 November 2017.[5]
[5] Exhibit 1, T Documents, T 2, pages 4-11, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 20 December 2017.[6]
[6] Exhibit 1, T Documents, T 1, pages 1-3, Application for Review.
On 19 September 2018, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and appeared by telephone.
On 2 May 2019, Executive Deputy President Dr P McDermott RFD reconstituted the Tribunal[7] so that the matter would be determined by Member Mitchell. On 8 May 2019, a Directions Hearing was held. The parties did not wish to make further submissions.
[7] Section 19D of the Administrative Appeals Tribunal Act 1975 (Cth).
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of her claim or within 13 weeks thereafter.
BACKGROUND
On the Applicant’s claim for DSP form[8] she lists the following disabilities, illnesses or injuries:[9]
-Dupuytrens contractor right and left hands
-Chemical Burn to throat
-Psychiatric injury (permanent)
[8] Exhibit 1, T Documents, T 12, pages 82-111, DSP claim form.
[9] Exhibit 1, T Documents, T 12, page 107, DSP claim form.
On 22 May 2017, the Applicant attended an assessment with a Job Capacity Assessor (JCA). In the JCA report dated 5 June 2017,[10] the Assessor considered that the Applicant’s anxiety condition was fully diagnosed, fully treated and fully stabilised and could be assigned an impairment rating of 5 points under Table 5 of the Impairment Tables. The Assessor considered that the Applicant’s carpel tunnel and irritable bowel syndrome were fully diagnosed, but were not fully treated or fully stabilised. The Assessor reported that the Applicant had a Baseline Work Capacity of 8 – 14 hours per week, and a predicted capacity of 15 – 22 hours per week within 2 years with intervention.[11]
[10] Exhibit 1, T Documents, T 14, pages 113-118, Job Capacity Assessment Report.
[11] Exhibit 1, T Documents, T 14, page 117, Job Capacity Assessment Report.
A decision was made to reject the Applicant’s DSP application on 16 June 2017,[12] on the basis that the Applicant did not meet the qualification requirements.
[12] Exhibit 1, T Documents, T 15, pages 119-121, Centrelink Notice: Rejection of DSP claim.
On 4 July 2017, an ARO affirmed the decision to refuse the Applicant’s claim for DSP.[13] The ARO made the following key findings:[14]
Findings of Fact
After careful consideration of the evidence, I have made these key findings:
·You have the following medical conditions: anxiety, carpal tunnel syndrome, irritable bowel syndrome and oesophageal disorder.
·Your conditions of carpal tunnel syndrome, irritable bowel syndrome and oesophageal disorder are not accepted as being permanent as they have not been fully treated and stabilised.
·Your total impairment rating is five points.
·You do not have a continuing inability to work 15 hours per week or more because of your impairment.
·You do not qualify for the Disability Support Pension under the New Zealand agreement.
[13] Exhibit 1, T Documents, T 16, pages 122-130, Authorised Review Officer Decision and Notes.
[14] Exhibit 1, T Documents T 16, page 123, Authorised Review Officer Decision and Notes.
On 4 September 2017, the Applicant sought review of the DSP refusal decision by the SSCSD.[15] On the 22 November 2017, the SSCSD affirmed the decision under review.[16]
[15] Exhibit 1, T Documents, T 17, pages 131-132, Referral to Social Services & Child Support Division.
[16] Exhibit 1, T Documents, T 2, pages 4-11, Decision of the SSCSD.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991(the Act), the Social Security (Administration) Act 1999 (Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). Following is a summary of the key requirements which relate to the Applicant.
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:
1.Does the Applicant have a physical, intellectual or psychiatric impairment;[17]
2.Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[18]
3.Does the Applicant have a continuing inability to work;[19] and
4.Does the Applicant meet the residency requirements.[20]
[17] Section 94(1)(a) of the Act.
[18] Section 94(1)(b) of the Act.
[19] Section 94(1)(c) of the Act.
[20] Section 94(1)(e) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(i)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(ii)are function based rather than diagnosis based; and
(iii)describe functional activities, abilities, symptoms and limitations; and
(iv)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could not do, not on the basis of what the person chooses to do or what others do for them.[21] The Impairment 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.[22] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[23]
[21] Section 6(1) of the Determination.
[22] Section 6(2) of the Determination.
[23] Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[24]
[24] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[25]
(a)have been fully diagnosed by an appropriately qualified medical practitioner; and
(b)have been fully treated; and
(c)have been fully stabilised; and
(d)be more likely than not, in light of available evidence, to persist for more than 2 years.
[25] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, consideration must be given to: 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.[26]
[26] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[27]
(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.
[27] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[28]
[28] Section 6(7) of the Determination.
The rules for assigning impairment ratings to conditions which are considered permanent are set out in Part 2 of the Determination. Part 3 of the Determination sets out Impairment Tables.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which in summary requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support;
(b)be unable to work for at least 15 hours per week independently of a program of support; and
(c)be unable to participate in a training activity during the next 2 years or 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.
A person’s impairment is considered to be 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.[29]
[29] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[30]
[30] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside this Relevant Period may be considered, however only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[31]
[31] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123 at [25]-[28].
In order to meet the residency requirements to qualify for DSP section 94(1)(e) relevantly, requires the person either to:
(i)be an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)have 10 years qualifying Australian residence, or has a qualifying residence exemption for a DSP;
Section 7(2) of the Act provides that a person is an ‘Australian resident’ if they reside in Australia and is one of the following:
(a)An Australian citizen;
(b)The holder of a permanent visa; or
(c)A special category visa holder who is a protected Special Category Visa (SCV) holder.
The Social Security (International Agreements) Act 1999 (SS International Agreement Act) facilitates reciprocal international social security agreements to allow persons who would not otherwise qualify for a social security payment to do so. Schedule 3 of the SS International Agreement Act outlines the Agreement on Social Security between the Government of Australia and the Government of New Zealand.
Under Article 2(2) of Schedule 3 of the SS International Agreement Act, an Australian DSP and New Zealand supported living payment shall be limited to cases where:
(a)the person is severely disabled;
(b)the person was a resident of one of the Parties at the date they became severely disabled; and
(c)the person, prior to the date of severe disablement, was residing in the territory of the other Party for a period not less than one year at any time.
Article 1(m) of Schedule 3 of the SS International Agreement Act defines ‘severely disabled’ as a person who:
(i)has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:
(ii)to work for at least the next 2 years; and
(iii)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(iv)is permanently blind.
RELEVANT PERIOD
The Relevant Period in this matter commences on 20 February 2017, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 22 May 2017. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal it is clear that the Applicant does not meet the residency requirements of section 94(1)(e) of the Act as she came to live in Australia on 28 March 2010 and is a New Zealand citizen who remains in Australia under a visa subclass 444, which is neither a permanent visa nor a protected special category visa (SCV).
As the Applicant, does not meet the residency requirement of section 94(1)(e) of the Act a preliminary issue arises in relation to whether a person must satisfy Article 2(2) of Schedule 3 of the SS International Agreement Act and sections 94(1)(a),(b) and (c) of the Act to qualify for DSP or only satisfy Article 2(2) of Schedule 3 of the SS International Agreement Act.
The Respondent contends that a person must satisfy sections 94(1)(a),(b) and (c) of the Act and Article 2(2) of Schedule 3 of the SS International Agreement Act to qualify for DSP.[32]
[32] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 13-17, paragraphs 68-85.
While varying views on this issue have been expressed by the Tribunal, I prefer that taken by Deputy President Dr P McDermott RFD in Secretary, Department of Social Services and Stretch [2017] AATA 1429 (4 September 2017) and as applied by Member C Edwardes in Pickering and Secretary, Department of Social Services [2018] AATA 4223 (13 November 2018) that both the requirements of the Act and the SS International Agreement Act must be satisfied for a person to qualify for DSP.
I agree with the following position as expressed by Deputy President Dr P McDermott RFD in Secretary, Department of Social Services and Stretch [2017] AATA 1429 (4 September 2017):
10. The Agreement does not displace the general operation of the social security law of Australia. Indeed, Article 2(1) of the Agreement confirms that the Agreement shall apply to the ‘social security law’ of Australia in relation to the benefit of DSP (Article 2(1)(a)(ii)). The only modification to the application of the social security law of Australia is found in paragraph 2 of Article 2(2) of the Agreement.
11. Article 2 of the Agreement is not a self-contained legislative regime relating to the entitlement of the respondent for DSP. That Article does not, for example, determine how an applicant would claim DSP or what the rate of payment of DSP is, such matters are governed by the application of the ‘social security law’ of Australia. That is why I have previously decided that the ‘start date’ of the payment of DSP to a New Zealand resident who is qualified to receive that benefit can only be determined by the application of sections 41 and 42 and Part 2 clause 3 of Schedule 2 of the Administration Act.
The remaining issues for the Tribunal to consider are:
1.Whether, within the Relevant Period, the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments; and
2.If so, whether, within the relevant period the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and
3.If so, did the Applicant have a continuing inability to work; and
4.If so, whether the Applicant was severely disabled.
Did the Applicant suffer from a physical, intellectual or psychiatric impairment or impairments – section 94(1)(a) of the Act?
Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[33] The Respondent considers the Applicant’s impairments include Adjustment disorder with Mixed Anxiety,[34] dupuytren’s contracture,[35] irritable bowel syndrome,[36] and chemical burn to throat[37] conditions.
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
[33] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 6, paragraph 29.
[34] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 6-8, paragraphs 31-35.
[35] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 8-9, paragraphs 36-38.
[36] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 9, paragraphs 39-40.
[37] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 9, paragraphs 39-40.
The Tribunal has before it in this matter:
·Exhibit 1: Section 37 T Documents (pages 1-163)
·Exhibit 2: Secretary’s Statement of Facts, Issues & Contentions dated 25 June 2018
·Exhibit 3: Independent medico-legal report from Associate Professor Peter Steadman – Consultant Orthopaedic Surgeon dated 14 December 2015
·Exhibit 4: Applicant’s statement dated 13 June 2018
·Transcript of Proceedings: Hearing by telephone conducted on 15 October 2018
The present issue for the Tribunal is whether, at or during the Relevant Period, the Applicant’s conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables. A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[38] As such, the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be more likely than not to persist for more than 2 years.[39] The Impairment 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.[40] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[41]
[38] Section 6(3) of the Determination.
[39] Section 6(4) of the Determination.
[40] Section 6(2) of the Determination.
[41] Section 8(1) of the Determination.
At the outset of the Hearing when the Tribunal asked the Applicant to provide her submissions she referred to her move to Australia and that:
The thing is I came here a happy, normal, healthy person and now I’m not because of my work injuries, so I just think that I should have some financial support because of that. …
So, I’ve got nothing really else to say. It’s all there, but it’s whether people choose to look at it and take it into account. So I can’t say anything else.[42]
[42] Transcript, page 7.
Adjustment Disorder with mixed anxiety and depressed mood
In a report requested for a claim for worker’s compensation, dated 2 November 2016, Dr Jonathan Lichter, Psychiatrist diagnosed the Applicant with Adjustment Disorder with mixed anxiety and depressed mood. Dr Lichter provided:
[The Applicant’s] prognosis must be guarded. I believe that she has now reached maximum medical improvement and that no further significant improvement in her mood is likely to occur with further psychiatric treatment. This is to a large extent due to the fact that she continues to experience significant pain in her right hand, which is restricting her physical functioning and work capacity. In the absence of improvement in her right hand condition I think it is likely that [the Applicant] will continue to experience symptoms of anxiety and depression for the foreseeable future. Her prognosis for returning to work is poor. This is both because of her mental condition as well as the fact that use of the right hand exacerbates her pain. In my opinion she will not be able to work as a cleaner again. At best she may be capable of performing some light work duties on a part-time basis but this is not likely to be possible until her diarrhoea is under better control and she is more confident and stable in her mood.[43]
[43] Exhibit 1, T Documents, T10, pages 78-79, Psychiatric report completed by Dr Jonathan Lichter.
In relation to functional impairment of the Applicant’s Adjustment Disorder with mixed anxiety and depressed mood condition, Dr Lichter provided:
[The Applicant] has lacked energy and motivation and experienced impairment of concentration and short term memory. She becomes anxious when she is out of the house and this anxiety has been exacerbated by the development of nausea, abdominal cramps and diarrhoea. She reports that she is not able to stay out of the house for long as she starts to feel panicky but her anxiety subsides once she gets home again.[44]
…..
[The Applicant] moved to Australia in 2010, when she met her current partner, Barry at Rock’n’Roll dancing. …. She describes him as a kind, gentle and caring man …[45]
[44] Exhibit 1, T Documents, T10, page 76, Psychiatric report completed by Dr Jonathan Lichter.
[45] Exhibit 1, T Documents, T10, pages 77-78, Psychiatric report completed by Dr Jonathan Lichter.
The Job Capacity Assessment (JCA) report dated 5 June 2017 recommended that the Applicant’s mental health condition be assigned 5 points under Table 5 of the Impairment Tables. The Assessor noted that the Applicant’s self-report of functional impacts were consistent with those provided in medical reports provided as part of her Workers Compensation claim relating to a workplace injury she sustained.[46]
[46] Exhibit 1, T Documents, T14, page 116, Job Capacity Assessment.
A summary of the JCA’s record of the Applicant’s self-report of functional impacts from her mental health condition are as follows:[47]
·Self-care and independent living. Becomes anxious when she is out of the house. States she reports that she is not able to stay out of the house for long as she starts to feel panicky but her anxiety subsides once she gets home again. Changes clothes daily. Diet is less nutritious and she tends to comfort eat. Cooks simple meals. Does not keep the house clean as she used to. Household chores are performed less frequently due to loss of interest and discomfort in her hand. She can neglect self-care at time including showering and she requires assistance from her partner at times with daily tasks.
·Interpersonal relationships. … she is frequently irritable and frustrated with him, but does not express this overtly. Indicates she continues to socialise with two friends. Loss of interest in dancing which she attended four days per week. Plays guitar and attends church. Enjoys gardening daily with fruit trees and vegetables. She has one friend she is in contact with. Some difficulty interacting with others.
·Concentration. She has lacked energy and motivation and experienced impairment of concentration and short term memory. She can read one chapter of the Bible per day but sometimes concentration is limited to approximately three minutes. Had difficulties at the Tribunal with questions. Reports difficulty with concentration and can become easily frustrated and overwhelmed.
·Behaviour, planning and decision making. Becomes anxious when she is out of the house … but anxiety subsides once she gets home
·Work/training capacity. Ability to work has been impacted by impaired concentration, memory and mood in addition to physical restrictions.
[47] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 7, paragraph 31.
At Hearing on cross-examination, the Applicant:
·Acknowledged Dr Lichter’s report however he retired and she was unable to continue seeing him. She believes that if she had of been able to continue to see him he would have seen there was no change; [48]
·When asked whether she has any evidence to dispute Dr Lichter’s comment that: “At best she may be capable of performing some light work duties on a part-time basis, but this is not likely to be possible until her diarrhoea is under better control and she is more confident and stable in her mood.” she told the Tribunal: “I don’t need to dispute that. He said “unless”, so I’m agreeing with that unless, and he’s right. It hasn’t happened so I agree with what he said.” [49]
·Confirmed that she does not like to stay outside of the house for too long because she feels panicky and she likes to cook simple meals; [50]
·Said she does not change her clothes daily, but tries; [51]
·She has been in a relationship for six and a half years; [52]
·She has four adult children and nine grandchildren. Two of her children’s families live in Australia and come and visit her, she rarely goes to see them; [53]
·She stopped her rock and roll dancing not long after her injuries and has never resumed it; [54]
·She has two friends but that she falls out with them because they want her to do things and she is unable to go out, they keep in contact irregularly, it depends on whether she answers the phone; [55] and
·She likes going to church however does not make it very often. [56]
[48] Transcript, page 8.
[49] Transcript, page 8.
[50] Transcript, page 12.
[51] Transcript, page 12.
[52] Transcript, page 13.
[53] Transcript, page 13.
[54] Transcript, page 13.
[55] Transcript, page 13.
[56] Transcript, page 14.
Table 5 of the Impairment Tables considers mental health function. A mild functional impact requires following descriptor to be met:
5
There is a mild functional impact on activities involving mental health function.
(1) The person has mild difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b) social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d) concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e) behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f) work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
A moderate functional impact, which would assign 10 impairment points would require the Applicant to have moderate difficulties with most of the above descriptors[57] and a severe functional impact, which would assign 20 impairment points would require the Applicant to have severe difficulties with most of the above descriptors.[58]
[57] Table 5 – Mental Health Function, Part 3 of the Determination.
[58] Table 5 – Mental Health Function, Part 3 of the Determination.
The Respondent contends that the Applicant’s Adjustment Disorder with mixed anxiety and depressed mood condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period and that the condition attracts 5 points under Table 5 of the Impairment Tables on the basis that the Applicant satisfied the following descriptors:[59]
o(1)(a) – the Applicant lives independently but may sometimes neglect self-care and grooming
o(1)(c) – the Applicant has interpersonal relationships that are strained with occasional tension or arguments
o(1)(d) – The Applicant has difficulty focussing on complex tasks for more than 1 hour
o(1)(f) – The Applicant has occasional interpersonal conflicts at work
[59] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 7-8, paragraph 32.
The Respondent contends that Applicant cannot achieve a higher rating because she would not satisfy most of the descriptors for a rating of 10 impairment points on Table 5 of the Impairment Tables as she would only satisfy descriptors (1)(d) and (1)(e).[60]
[60] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 8, paragraph 33.
Based on the evidence set out above, I find that the Applicant’s mental health condition, in particular Adjustment Disorder with mixed anxiety and depressed mood was fully diagnosed, fully treated, fully stabilised during the Relevant Period.
Considering the medical evidence and evidence given at the Hearing by the Applicant, I am satisfied that the Applicant’s impairment should be assigned 5 points under Table 5 of the Impairment Tables. During the Relevant Period, there is no corroborative evidence to suggest that the Applicant met the requirements to be assigned 10 or 20 points under Table 5 of the Impairment Tables.
Based on the evidence before the Tribunal I find that the Applicant’s Adjustment Disorder with mixed anxiety and depressed mood condition was fully diagnosed, fully treated and fully stabilised at the relevant period and can be assigned a functional impairment rating of 5 points under Table 5 of the Impairment Tables.
Dupuytren’s contracture
The Respondent contends that the Applicant’s dupuytren’s contracture condition is fully diagnosed, but was not fully treated and fully stabilised at the Relevant Period. The Respondent relies on the following medical evidence:[61]
·X-ray report of the right hand by Dr Newman dated 12 March 2014 stating that there were two lumps near the 4th finger on the right hand.[62]
·Medical report by Dr Bonev, neurologist dated 1 July 2015 confirming mild Dupuytren’s contracture of digit V of the right hand and that the Applicant was referred to her GP for on-going management.[63]
·Ultra sound report of the left hand by Dr Repin dated 23 July 2015 confirming Dupuytren’s contracture of the 4th and 5th metacarpophalangeal joints.[64]
·Medical assessment Tribunal decision dated 23 January 2017 which reported the Applicant as advising that her right hand continues to ache and it limits a number of activities of daily living such as driving a motor vehicle, ability to carry shopping and affects her mood and her sleep.[65]
·Workers compensation medical certificate by Dr Agah dated 17 February 2016 noting that planned treatment included a referral to an orthopaedic surgeon and there was no limit to lifting and the right hand was limited by pulling.[66]
·Medical report by Dr Lichter dated 2 November 2016 which noted the Applicant’s reporting that she was on a long surgical wait list for review of her condition.[67]
[61] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 8-9, paragraphs 36-38.
[62] Exhibit 1, T Documents, T4, page 60, Ultrasound right hand clinical history and findings.
[63] Exhibit 1, T Documents, T5, page 61-62, Upper limb investigations and test results completed by Dr Ventzi Bonev.
[64] Exhibit 1, T Documents, T6, page 64, Ultrasound left hand procedure report and findings.
[65] Exhibit 1, T Documents, T7, page 68, Medical Assessment Tribunal Decision.
[66] Exhibit 1, T Documents, T8, page 72, Workers compensation medical certificate completed by Dr Mohammadreza Agah.
[67] Exhibit 1, T Documents, T 9, page 76, Employment Separation Certificate.
The Respondent contends that there is no corroborating evidence that the Applicant has undertaken the referral to an orthopaedic surgeon as recommended by Dr Agah on 17 February 2016, or that the Applicant is currently on a surgical wait list and the wait list is long.[68]
[68] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 8, paragraph 37.
The Applicant provided an Independent Medico-Legal Report provided by Associate Professor Peter Steadman, Consultant Orthopaedic Surgeon dated 14 December 2015.[69] Dr Steadman confirmed a diagnosis of palmar Dupuytren’s and on 2 December 2015, the date of examination he said that the Applicant could resume work and that at that time no other treatment would be indicated. Dr Steadman provided that:[70]
The work related injury is stable and stationary. There may be an issue in the future if she begins to develop a flexion deformity and does not pass the so called Houston Tabletop Test, surgical intervention may be required.
[69] Exhibit 3, Independent medico-legal report from Associate Professor Peter Steadman – Consultant Orthopaedic Surgeon dated 14 December 2015.
[70] Exhibit 3, Independent medico-legal report from Associate Professor Peter Steadman – Consultant Orthopaedic Surgeon dated 14 December 2015.
At Hearing, on cross-examination the Applicant:[71]
·Said she had seen another specialist after Dr Steadman, she thought his name was Dr Mark Ross and she said he was nasty to her; and
·Confirmed that there were no reports from Dr Ross before the Tribunal.
[71] Transcript, page 11.
Based on the medical evidence before the Tribunal, and the evidence provided at Hearing by the Applicant, I find that the Applicant’s dupuytren’s contracture condition was fully diagnosed, however was not fully treated or fully stabilised during the Relevant Period as she was still engaging in treatment and investigation of the condition at the Relevant Period.
As I have found that the Applicant’s dupuytren’s contracture condition was not fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Irritable Bowel Syndrome and Chemical Burn to Throat
The Respondent contends that the Applicant’s irritable bowel syndrome and chemical burn to throat conditions were not fully diagnosed, fully treated and fully stabilised during the Relevant period as there is no corroborating evidence regarding any investigations, diagnoses or treatment.[72]
[72] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 9, paragraph 39.
The medical reports before the Tribunal from the Applicant’s General Practitioners make no reference to her irritable bowel syndrome and chemical burn to throat conditions.[73]
[73] Exhibit 1, T Documents, T13, page 112, Medical certificate form completed by Dr Mohammadreza Agah; T18, page 133, Medical certificate completed by Dr Peter Harrington.
At the Hearing, on cross-examination the Applicant confirmed that the medical evidence before the Tribunal did not reference her irritable bowel syndrome and that she did not know why her doctors had not recorded this as she had discussed it and had a test taken to determine whether any bacteria was causing it. The Applicant told the Tribunal that her irritable bowel syndrome was linked to her anxiety.[74]
[74] Transcript, pages 9-10.
In the absence of any medical evidence to the contrary I find that the Applicant’s irritable bowel syndrome and chemical burn to throat conditions were not fully diagnosed, fully treated or fully stabilised at the Relevant Period.
As I have found that the Applicant’s irritable bowel syndrome and chemical burn to throat conditions was not fully diagnosed, fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the conditions.
Continuing inability to work – section 94(1)(c) of the Act
As I have found that the Applicant does not have a total of 20 impairment points, either on one table, or cumulatively across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.
Was the Applicant severely disabled – Article 2(2) of Schedule 3 of the SS International Agreement Act
As I have found that the Applicant does not have a total of 20 impairment points, either on one table, or cumulatively across multiple tables, there is no need to consider whether the Applicant met the requirements of the SS International Agreement Act.
CONCLUSION
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant’s mental health condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Based on the evidence before the Tribunal, I find that the condition caused the Applicant a mild functional impairment and can be assigned 5 points under Table 5 of the Impairment Tables.
I find that the Applicant’s dupuytren’s contracture condition was fully diagnosed, however was not fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
I find that the Applicant’s irritable bowel syndrome and chemical burn to throat conditions were not fully diagnosed, fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
I find that the Applicant’s impairments do not attract 20 points or more under the Impairment Tables.
Accordingly, the decision under review is affirmed.
I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
..............................[SGD]...................................
Associate
Dated: 14 June 2019
Date of hearing: 19 September 2018 Applicant: By phone Advocate for the Respondent: Ms Jasmine Forsyth
Solicitors for the Respondent: Department of Human Services
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