Franklin and Secretary, Department of Social Services (Social services second review)

[2016] AATA 596

Franklin and Secretary, Department of Social Services (Social services second review) [2016] AATA 596 (12 August 2016)

Division	GENERAL DIVISION
File Number	2016/0254
Re	Suzanne FRANKLIN
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	D. J. Morris, Member
Date	12 August 2016
Place	Perth

The Tribunal affirms the reviewable decision.

........[Sgd]................................................................

D. J. Morris, Member

CATCHWORDS

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – not qualified for DSP – decision affirmed

LEGISLATION

Social Security Act 1991 – s 94(1) – s 94(1)(b) – s 94(1)(c) – s 94(5)

Social Security (Administration) Act 1999 – Schedule 2 Clause 4(1)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

D. J. Morris, Member

12 August 2016

BACKGROUND

1. Mrs Suzanne Franklin seeks a review of the decision of the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT1) to affirm the decision of the Department of Human Services (Centrelink) that she is not qualified for Disability Support Pension (DSP). 

2. The hearing was held on 3 August 2016.  The Applicant was self-represented.  The Respondent was represented by Ms Katherine Whittemore.  Mrs Franklin gave evidence under affirmation and was cross-examined by counsel for the Respondent.

3. The Tribunal considered documents submitted by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents). 

4. The Applicant tendered the following documents:

   ·Medical certificate from Dr Manek Vithal dated 18 May 2016;

   ·Medical report from Dr Daya Durugiah of Daya X-Ray and Ultrasound Centre, dated 17 May 2016;

   ·Medical report from Dr Manek Vithal dated 10 March 2016;

   ·Email from Dr Durugiah to Dr Vithal dated 3 September 2014;

   ·Email from Dr Durugiah to Dr Vithal dated 17 October 2014;

   ·Email from Dr Durugiah to Dr Greg Dawson of Kingsway Medical Centre dated 30 January 2015; and

   ·Letter from Bau Franklin, undated but received on 19 May 2016.

   FACTS

5. Mrs Franklin is a 46 year old lady who made an application for DSP on 13 May 2015.

6. On 18 June 2015, an officer of the Department of Human Services (the Department) decided that Mrs Franklin was not qualified for DSP under the Social Security Act 1991 (the Act) on the basis that she had been assessed as not having an impairment rating of 20 points or more under the provisions of section 94(1)(b) of the Act, which is an essential requirement for qualification for DSP.

7. The Applicant sought a review of this decision.  An authorised review officer considered the decision and on 9 September 2015 affirmed the decision. 

8. Mrs Franklin sought a review of the authorised review officer’s decision to refuse the grant of DSP by AAT1.  A hearing was held on 10 November 2015 in Perth. 

9. On 17 December 2015, AAT1 affirmed the Department’s decision.  Mrs Franklin sought a review of the decision of AAT1 before this Tribunal.

10. The purpose of this hearing, therefore, is to review the original decision of the Department’s officer that the Applicant was not qualified for DSP on the date she applied, 13 May 2015, or, applying clause 4(1) of Schedule 2 of the Social Security(Administration) Act 1999, that the Applicant did not become qualified for DSP within the period of 13 weeks after the date of claim.  This 13 week period concluded on 12 August 2015.

    QUESTION BEFORE THE TRIBUNAL

11. Was the Applicant qualified to receive the DSP on 13 May 2015 or, if not, did she become so qualified within the period ending on 12 August 2015 (“the relevant period”)?

    Qualification for DSP under the Act

12. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Social Security Act 1991 and the qualification criteria for DSP must be satisfied.  For this reason, it must be established that the person has –

    (a)a physical, psychological or mental impairment;

    (b)the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and

    (c)a continuing inability to work.

13. The Impairment Tables under which a person must be assessed under the Act are the Impairment Tables implemented from 1 January 2012 and set out in Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

14. The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1)(c) and section 94(5) of the Act is work that is for at least 15 hours a week.

    Does the Applicant have a physical, intellectual or psychiatric impairment?

15. It is not disputed, and was in my view rightly conceded by the Respondent, that Mrs Franklin suffered from osteoarthritis of the right hand at the date of her claim, and still suffers from this condition.

    Medical evidence

16. The Tribunal had before it a medical report of an examination dated 3 September 2014 from Dr Dayanandran Durugiah, radiologist, of Daya X-Ray & Ultrasound Centre, reporting as follows:

    Right Hand and Wrist

    Severe osteoarthritic changes are seen in the first carpometacarpal joint, with evidence of some overlying soft tissue swelling.  Early OA changes are also seen in the distal IP joints of the index and middle fingers.  The rest of the bones and joints around the wrist and hand are normal.

    …

17. Dr Manek Vithal, general practitioner, provided a medical report dated 7 May 2015 with a confirmed diagnosis of osteoarthritis of the right hand, with a date of onset of ‘2014’.  He reported that Mrs Franklin had had two steroid injections under ultrasound guidance, which is corroborated by other medical reports from Dr Durugiah, and that a third steroid injection was scheduled.  Dr Vithal reported that the symptoms included pain and restricted movements in right hand and thumb.  He gave his opinion that the impact of this condition on the Applicant’s ability to function is expected to persist for more than 24 months and that, within the next two years, the effect of the condition on her ability to function is expected to deteriorate.

18. Department officers carried out a face to face Job Capacity Assessment (JCA) with Mrs Franklin on 17 June 2015, and, accepted that her osteoarthritis was verified by medical evidence and is fully diagnosed, fully treated, and fully stabilised.  The JCA noted that osteoarthritis is a progressive disease which is unlikely to improve with further treatment.  While I accept the diagnosis of osteoarthritis and that it is, by its nature, a progressive disease, I do not necessarily accept the assertion, in the absence of other medical evidence that the condition is unlikely to improve with further specialist treatment.  However, that is not relevant to my coming to the conclusion that the Applicant has a physical impairment that is fully diagnosed, fully treated and fully stabilised.

19. I find that the Applicant does have a physical, intellectual or psychological impairment, namely osteoarthritis of the right hand. Therefore she satisfies section 94(1)(a) of the Act.

    What is the correct rating under the Impairment Tables?

20. The correct Impairment Table to consider the functional impact of the Applicant’s condition of osteoarthritis of the hand is Table 2 – Upper Limb Function.  When considering how this Impairment Table applies in a particular person’s case, the Tribunal must do so with reference to the Rules for applying the Impairment Tables set out in Part 2 of the Minister’s Determination.

21. In particular, Rule 6(3) provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.

22. In considering whether a condition is “permanent”, Rule 6(4) requires that a condition must be fully diagnosed by an appropriately qualified medical practitioner, and the condition must be fully treated and fully stabilised.

23. The osteoarthritis condition suffered by the Applicant satisfies these statutory requirements. It has been diagnosed by an appropriately qualified medical practitioner; the applicant has received treatment (which continues); and the condition, being a chronic condition, can be regarded as fully stabilised.  It is a medical condition that is more likely than not, in light of the available evidence, to persist for more than two years, and so I find that Mrs Franklin’s condition is permanent in terms of satisfying Rule 6(3) of the Impairment Tables.

24. Mrs Franklin told the Tribunal that she received advice in June 2016 that she is on a list to see an orthopaedic surgeon to see what may be done to alleviate the conditions in her hand.  Apart from this statement (which I have no reason not to accept), there was no other specific evidence before the Tribunal of this planned future medical consultation except a reference in Dr Durugiah’s 17 May 2016 letter to Dr Vithal saying “it may be worth considering a specialist opinion”.  The fact that there may be some further surgical intervention or other medical treatment which is available does not derogate from my conclusion that the Applicant’s current condition is fully treated and stabilised.

25. The Applicant gave evidence to the Tribunal about difficulties she experiences with the use of her right hand because of the osteoarthritis.

26. She said she is unable to tie shoelaces and experiences aching pain in her hand throughout the day.  She said she had difficulties in carrying any items requiring two hands and, if she had to do so, she would try and ‘cradle carry’ the item with her right arm, because of the impairment in her right hand.

27. The Applicant said that she was able to use a mobile telephone but had to do so on her lap or on a hard surface, using her left hand to push the buttons.  She said she had difficulty undoing the tops of bottles and containers.

28. Mrs Franklin said that the conditions in her right hand affect her daily life.  She cannot hang out washing and could not wash up dishes.  Her son lives with her and she told the Tribunal that he has taken over all the cooking and many household chores because of the difficulties she experiences.  Her evidence is consistent with the letter tendered before the Tribunal from her son, Mr Bau Franklin.  She agreed that she could lift lighter objects with her left hand.  She has significant problems using a pen or pencil and had a friend fill in documents relating to her application; she managed to sign her name to them with difficulty.

29. She agreed that she could use her left hand to turn on taps but that her left hand was also becoming troublesome and she believed that was through a combination of dominant use and also the development of osteoarthritis.  The Applicant gave no specific evidence of impairment of her left hand other than this statement, and no corroborative medical or other evidence was tendered in relation to her left hand, so under Rule 8(1) of the Determination, the Tribunal cannot take it into account.

30. Mrs Franklin told the Tribunal that she owns a motor car and could drive but that her son mainly drove now, owing to her hand problem.  She gave evidence that he would drive her to the shopping centre and she would choose items, but he packed them and drove her home as she was unable to carry any bulky items.  Because of difficulties with her hand, the Applicant no longer uses an ATM and has someone else use it for her.

31. The Impairment Tables which must be applied to any application for DSP are function-based.  The evidence given by the Applicant, both in the documents before the Tribunal and during the hearing, is consistent with a moderate functional impact on activities using hands or arms under Table 2 – Upper Limb Function.  The Applicant has difficulty picking up a light but bulky object requiring the use of two hands, cannot tie shoelaces or easily open bottles.  She advised the Tribunal that she did not use a computer but when using a mobile telephone used her left hand.

32. Whilst from the evidence the Applicant may satisfy a functional descriptor in Table 2 satisfying ‘severe functional impact’, such as severe difficulty in using a writing implement, the Determination made by the Minister requires that most of the descriptors be satisfied for a severe rating to be assigned.  The evidence does not support this. 

33. Dr Vithal wrote the word “severe” against four descriptors on Impairment Table 2, against descriptors relating to ‘moderate functional impact’. Dr Vithal also wrote the word “severe” in descriptor (c) in the ‘severe functional impact’ section on page 16 of the Minister’s Determination.  Descriptor (c) in this part of the Determination states “the person has difficulty using a computer keyboard despite appropriate adaptations”.  However, Mrs Franklin gave evidence that she did not possess, nor use, a computer.  I note Dr Vithal did not mark any part of the ‘severe functional impact’ section of the Determination except in relation to keyboard use, and left descriptor (e)  “using a standard computer keyboard”, in the ‘moderate functional impact’ part of the Determination blank. 

34. I note that AAT1 wrote to Dr Vithal to seek clarification of his medical report in this regard, but he did not provide any additional information. No other additional information has come before this hearing other than both Dr Vithal and Dr Durugiah using the general term ‘severe osteoarthritis’ when providing medical reports on the Applicant’s current treatment regimen.  Therefore, in these circumstances I cannot give weight to these particular markings by Dr Vithal as indicating severe functional impact.   

35. I find that, with reference to the evidence to this Tribunal (which I note was consistent with evidence given to AAT1) and the corroborative written medical reports and the descriptors in the Impairment Tables, there was a moderate functional impact from this condition during the relevant period.

36. Therefore, the Tribunal finds that the assignment of 10 points was the appropriate rating for the Applicant’s condition of osteoarthritis of the hand during the relevant period.

    CONCLUSION

37. I found Mrs Franklin to be a credible and open witness.  She told the Tribunal that, prior to marriage, she had worked successfully at a Dairy Farm factory in Victoria, but gave up work on her marriage and has not re-entered the workforce.

38. I do not doubt that Mrs Franklin’s osteoarthritis condition is challenging and that it has had a deleterious impact on her daily life, and limits many of the things she used to do.

39. However, for a person to be eligible for DSP, each part of section 94 of the Act must be satisfied. As the Tribunal has found that the Applicant was correctly allocated a total of 10 points under the Impairment Tables, the requirements of section 94 (1)(b) of the Act are not satisfied in the relevant period. The consequence is that the Applicant was not qualified for DSP on the relevant date, 13 May 2015, and nor did she become qualified within the 13 week thereafter, concluding on 12 August 2015.

40. As all three sub-parts of section 94(1) of the Act must be satisfied, it is not necessary for the Tribunal to go on to consider whether the Applicant has a continuing inability to work.

41. I understand that this outcome will be disappointing to the Applicant, but my findings mean that the original decision was correct.

    DECISION

42. The reviewable decision is affirmed.

I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member

.......[Sgd].................................................................

Administrative Assistant

Dated 12 August 2016

Date of hearing	3 August 2016
Applicant	In person
Representative for the Respondent	Ms K Whittemore
Solicitors for the Respondent	Mills Oakley Lawyers