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

Frenz and Secretary, Department of Social Services (Social services second review) [2017] AATA 1083 (13 July 2017)
Division:GENERAL DIVISION
File Number: 2016/5526
Re:Emma Frenz
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:13 July 2017
Place:Sydney

The decision under review is affirmed.
...........................[sgd].............................................
Senior Member Linda Kirk
CATCHWORDS
SOCIAL SECURITY – disability support pension – Impairment Tables – whether conditions fully diagnosed, treated and stabilised – whether applicant has an impairment rating of 20 points or more under the Impairment Tables – depression and adjustment order – urinary incontinence – spinal condition – lower limb conditions – other conditions – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) s 42, sched 2
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member Linda Kirk

Ms Emma Frenz (‘the Applicant’) suffers from a number of medical conditions which she claims make it difficult for her to work, or to look for work.
On 8 March 2016, Ms Frenz applied for the Disability Support Pension (‘DSP’). On 23 May 2016, her application for DSP was rejected by a delegate of the Secretary of the Department of Social Services (‘the Respondent’), and on 3 June 2016, an Authorised Review Officer (‘ARO’) affirmed the decision on review, on the basis that she did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’).
Ms Frenz applied to the Social Security and Child Support Division of this Administrative Appeals Tribunal for review (‘the SSCSD’). In a decision dated 8 September 2016, the SSCSD affirmed the decision of the ARO refusing Ms Frenz’s claim for DSP as she did not satisfy section 94(1)(b) of the Act.
On 13 October 2016, Ms Frenz applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the SSCSD decision.
The matter was heard by the Tribunal in Sydney on 18 May 2017. Ms Frenz attended the hearing in person and was self-represented. She was assisted by an interpreter.
ISSUES AND LEGISLATION
The issue before the Tribunal is whether Ms Frenz qualified for DSP at the relevant time.
Pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) in order to qualify for the DSP, Ms Frenz must satisfy the requirements of section 94 of the Act as at the date she made her claim, 8 March 2016, or within 13 weeks of lodging the claim, that is between 8 March 2016 and 7 June 2016 (‘the qualification period’).
Section 94(1) of the Act provides that a person qualifies for the DSP if:
·the person has a physical, intellectual or psychiatric impairment; and
·the person’s impairment is of 20 points or more under the Impairment Tables; and
·the person has a continuing inability to work as defined in section 94(2) of the Act.
The Respondent concedes, and the Tribunal agrees, that Ms Frenz suffered medical conditions that caused impairment during the relevant period, and therefore she satisfies section 94(1)(a) of the Act at the time of her claim for disability support pension.
It follows that the issues for determination for the Tribunal in this matter are whether, during the qualification period, Ms Frenz had:
·an impairment rating of 20 points or more under the Impairment Tables (section 94(1)(b)); and
·a continuing inability to work as defined in section 94(2) of the Act (section 94(1)(c)).
The Impairment Tables
The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’).
The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.
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’.
Part 2 of the Impairment Tables details the rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.
Section 6(3) of the Impairment Tables requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. Pursuant to section 6(4) of the Impairment Tables, a condition is ‘permanent’ if it:
·has been fully diagnosed by an appropriately qualified medical practitioner; and
·has been fully treated; and
·has been fully stabilised; and
·is more likely than not to persist for more than two years.
In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, section 6(5) of the Impairment Tables instructs that a decision-maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.
For the purposes of the Impairment Tables, section 6(6) defines fully stabilised to mean:
(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.
The Macquarie Dictionary defines “undertaken” as, inter alia, committing oneself to, taking on, and promising to do a particular thing.
Reasonable treatment is defined in section 6(7) of the Impairment Tables as treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:
(c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)
MEDICAL CONDITIONS
Ms Frenz claims and the Respondent accepts that, during the qualification period, she suffered from the following conditions:
·Depression and adjustment disorder;
·Urinary incontinence;
·Spinal condition;
·Lower limb conditions – left foot hallux valgus and bilateral varicosities of the thigh and leg;
·Shoulder and upper arm condition;
·Left wrist pain / Carpal Tunnel Syndrome;
·Enlarged thyroid gland; and
·Gastroenterological condition.
The issues for determination by the Tribunal are whether the conditions were fully diagnosed, treated and stabilised during the qualification period and, if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.
Which of the medical conditions can be given an impairment rating?
Condition 1 – Depression and adjustment disorder
The Respondent accepts that Ms Frenz’s mental health condition, namely adjustment disorder with depressed mood, was fully diagnosed during the qualification period, but contends that it was not fully treated and stabilised at that time.
In a report dated 31 August 2012, Dr Kifah Alshadidi, general practitioner, stated that Ms Frenz suffers from major depression and adjustment disorder for which she has been prescribed antidepressants. Dr Mohammed Allam, psychiatrist, in his report dated 6 April 2013 stated that, in his opinion, Ms Frenz was suffering from adjustment disorder with depressed mood and was taking an antidepressant. Dr Allam reported that he had only seen Ms Frenz on one occasion and considered that she would benefit from follow up medical and psychiatric treatment. In her evidence to the Tribunal Ms Frenz said that she made a second appointment with Dr Allam but when she went back to see him he had moved out.
Ms Frenz told the Tribunal that she is currently taking medication and she consults Mr Yaser Mohammad, whom she understands to be a psychologist. She has seen Mr Mohammad on 10 occasions. She told the Tribunal that she had intended to see a specialist/psychiatrist, but she could not afford the $800 fee she was required to pay.
The evidence before the Tribunal includes information from the Australian Health Practitioner Regulation Agency listing Mr Yaser Mohammad Hussien Mohammad as a registered nurse and a occupational therapist, and as holding a Bachelor of Science in Nursing and a Master of Occupational Therapy. When asked about this at the hearing, Ms Frenz said that Dr Susan Sanki, general practitioner, referred her to Mr Mohammad and she believed him to be a psychologist.
Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.
The Introduction to Table 5 of the Impairment Tables provides (inter alia):
The diagnosis of a 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 by a psychiatrist). (Emphasis added)
The Respondent contends and the Tribunal accepts that there is no evidence that, during the qualification period, Ms Frenz had undertaken further consultations with Dr Allam, or any other psychiatrist, or that she had received any psychological counselling or treatment in conjunction with taking her medication. Whereas Ms Frenz has consulted Mr Yaser Mohammad on multiple occasions, the evidence is that he is neither a psychiatrist or a clinical psychologist.
As there is no evidence before the Tribunal that indicates that had Ms Frenz undertaken the recommended treatment, including further psychiatric review and psychological counselling together with the prescribed medication, that significant functional improvement would have been unlikely to have resulted in the following two-year period. The Tribunal therefore finds that Ms Frenz’s mental health condition was not permanent as it was not fully treated and stabilised during the qualification period. Accordingly, no impairment rating can be assigned to this condition.
Condition 2 – Urinary incontinence
The Respondent accepts that Ms Frenz’s urinary incontinence was fully diagnosed during the qualification period, but contends that it was not fully treated and stabilised at this time. She did not undertake reasonable treatment during the qualification period.
In a report dated 18 October 2011, Dr Olara Shek, Associate Professor in obstetrics and gynaecology, recommended pelvic floor muscle exercise and bladder retraining for Ms Frenz. She stated that it was likely that Ms Frenz would require surgery for this condition. In her evidence to the Tribunal, Ms Frenz said that she only saw Dr Shek on one occasion. She told the Tribunal that Dr Shek told her what the surgery involved and the associated risks, and she decided she didn’t want to have the surgery because she was scared to do so.
In a report dated 23 March 2012, Dr Arpine Sarkis, general practitioner, opined that Ms Frenz needs surgery and referred her to a Uro-Gynaecologist. There is no evidence before the Tribunal that Ms Frenz consulted a Uro-Gynaecologist as recommended by Dr Sarkis.
In a medical certificate dated 23 November 2015 Dr Antoine Sanki, general surgeon, listed the condition ‘urinary incontinence, urgency cystocele’ describing the condition as temporary, and recording Ms Frenz as “waiting for surgery”. Ms Frenz told the Tribunal she began exercises and started medication prescribed by Dr Fernando Poli. Dr Poli wanted to send her to another surgeon but she did not want to have the surgery.
The Job Capacity Assessment (“JCA”) report dated 22 April 2016 recommended Ms Frenz’s urinary incontinence condition not be regarded as fully treated and stabilised as there was no evidence Ms Frenz accessed reasonable investigations and treatment.
In a letter dated 7 April 2017 (outside the qualification period) Dr Nasreen Shammas confirmed that Ms Frenz has sever chronic vulvovaginiti and she may require sling surgery. Ms Frenz said that Dr Shammas wanted her to take another test that would cost $500 which she could not afford. If she were to have the surgery it would be at a public hospital, and she would need to go on a waiting list and she does not know how long this would take.
On 10 April 2017 (outside the qualification period), Dr Sanki signed a Centrelink medical certificate certifying Ms Frenz unfit for work/study until 1 August 2017.
The Respondent contends, and the Tribunal accepts, that Ms Frenz had been recommended to undertake surgery which she did not do, and there is no evidence that provides a medical or other compelling reason for Ms Frenz not to undergo the recommended surgery.
Accordingly, the Respondent submits, and the Tribunal agrees, that as Ms Frenz had not had reasonable treatment for her urinary incontinence, her condition was not fully treated and stabilised during the qualification period. Accordingly, no impairment rating can be assigned to this condition.
Condition 3 – Spinal condition
The Respondent accepts that Ms Frenz’s spinal condition, namely multiple disc bulges with some degenerative changes in the lumbar spine, was fully diagnosed during the qualification period, but contends that it cannot be considered permanent as it was not fully treated and stabilised at that time.
In her evidence to the Tribunal Ms Frenz said that she has suffered from the spinal condition for almost 20 years.
In his report dated 11 October 2011, Dr Antoine Sanki stated that the then treatment for her spinal condition was Panadol with no previous treatment. In a subsequent report dated 20 September 2012, Dr Sanki noted that current treatment was analgesics with no previous treatment undertaken, and future treatment he listed as ‘physio/analgesics’. In his report dated 8 January 2016 Dr Sanki noted that conservative treatment had been undertaken including analgesic agents, non-steroidal anti-inflammatory tablets and physiotherapy.
Ms Frenz told the JCA assessor, as reported in the JCA report dated 22 April 2016, that she takes medication, engages in stretching exercises and attended four sessions of physiotherapy in 2015. At the hearing Ms Frenz said that she finds it difficult to exercise because she had a fall and broke her tail bone. When asked when this fall occurred, she said it was in November 2016 (outside the qualification period). She confirmed that she did take medication for her spinal condition and she had four sessions of physiotherapy sessions in 2015. She had another five sessions with a physiotherapist in 2016, which were funded by Medicare, but she could not remember the dates of these sessions.
The JCA assessor, in the report dated 22 April 2016, considered that Ms Frenz would benefit from further physiotherapy, pain management and hydrotherapy to achieve significant functional improvement within the next two years.
Ms Frenz said that the pain in her back has become worse in the last 12 months and it is now creeping from her back to her legs and that Dr Sanki, has referred her to have x-rays.
In her evidence to the Tribunal Ms Frenz said that, during the qualification period (March to June 2016), she was a single mother and cared for her three children. She said that her children and a friend would assist her with household duties including cooking, cleaning, shopping, and laundry during this time. She needed assistance because of her back pain and when she took medication she wanted to lie down and sleep.
Ms Frenz confirmed in her evidence to the Tribunal what she told the JCA assessor on 11 April 2016, namely that, during the qualification period, she was able to drive a small automatic car for approximately 15-20 minutes in the local area, including to see her GP. She said that she is however no longer able to drive because the tablets she takes make her drowsy and dizzy.
The evidence before the Tribunal is that, at the qualification period, Ms Frenz had not undertaken the recommended treatment for her spinal condition, and that there is no evidence that if this treatment were undertaken that there would not be a significant functional improvement in her condition in the next two years.
The Tribunal accepts the Respondent’s argument that Ms Frenz’s spinal condition was not permanent, as it was not fully treated and stabilised during the qualification period. Accordingly, no impairment rating can be assigned to this condition.
Condition 4 – Lower limb conditions
The Respondent accepts that Ms Frenz’s lower limb conditions, namely left foot hallux valgus (bunions) and bilateral varicosities of the thigh and leg were fully diagnosed, treated and stabilised during the qualification period, however contends that the appropriate impairment rating is zero points under Table 3.
In his report dated 20 September 2012, Dr Sanki reported Ms Frenz’s current symptoms as “unable to wear shoes”. In a medical certificate dated 14 November 2012 Dr John Atto, general practitioner, stated that, due to an osteotomy operation on the left foot, Ms Frenz had pain symptoms and was unable to stand/walk for long periods. However, in his opinion she is likely to show considerable improvement in two years. Subsequent to these reports, Ms Frenz underwent surgery on her bunions.
In a medical certificate dated 5 February 2013, Dr Shadidi stated that Ms Frenz’s condition of ‘foot postoperative pain’ is temporary and likely to show considerable improvement within two years.
Ms Frenz told the JCA assessor, as reported in the JCA report dated 22 April 2016, that she was able to stand/walk for up to 10 minutes at that time. She confirmed this in her evidence to the SSCSD and said that she can walk around her home and to local facilities and can use the stairs as necessary.
In her evidence to the Tribunal, Ms Frenz said that she can stand up without assistance but she is in a lot of pain. She said that in order to come to the Tribunal hearing she needed to take six tablets to ease the pain. She was in pain sitting in the hearing. She has a problem with her sciatica nerve which is a longstanding condition and cannot be treated. She also experiences back and bladder pain. Ms Frenz told the Tribunal that she can wear high heel shoes and she wore them to the hearing. However, she said that she can only walk short distances in high heel shoes, and if she needs to walk for a long distance she must wear flat shoes.
The Respondent contends that, according to her own evidence, Ms Frenz does not require a walking stick or prosthesis, and that during the qualification period she was able to stand for at least ten minutes. Accordingly, she does not satisfy all of the required descriptors for a five point impairment rating under Table 3 and therefore the appropriate impairment rating is zero points under this Table.

The evidence before the Tribunal is that, at the qualification period, Ms Frenz was able to stand/walk for up to 10 minutes, including walking around her home and to local facilities, and she could use the stairs as necessary. The Tribunal accepts the Respondent’s argument that Ms Frenz’s lower limb condition was fully diagnosed, treated and stabilised during the qualification period, but no impairment rating can be allocated for this condition under Table 3.
Condition 5 – Shoulder and upper arm condition
The Respondent accepts that Ms Frenz’s shoulder and upper arm condition, namely right shoulder supraspinatus tendonitis, was fully diagnosed during the qualification period, but contends that it cannot be considered permanent as it was not fully treated and stabilised at that time.
In a medical certificate dated 26 September 2012, Dr Sanki listed this condition as temporary, with Ms Frenz’s symptoms likely to show considerable improvement within two years. In a report dated 8 January 2016, Dr Sanki stated that Ms Frenz had been treated for this condition with a cortisone injection.
In the JCA report dated 22 April 2016 the assessor stated that Ms Frenz would benefit from physiotherapy and strengthening exercises.
In her evidence to the Tribunal Ms Frenz said that her daughter has to assist her with having a shower and washing her hair. She can, however, put her own hair into a bun.
Ms Frenz told the Tribunal that she ran a family day care business for more than three years from early 2013 until 25 October 2015. She would look after up to seven primary and high school children aged between six and fourteen years old. She would work approximately eight hours per day, from 8am to 9am and then from 3pm to 8pm. She would make breakfast for the children and take them to school in the morning in her car. After school, she would cook dinner for the children and supervise and help them whilst they did various activities, including games and craft activities. At the end of the day she would tidy up and vacuum when the children had left. She also would take the children on excursions in her car, for example to the park and to McDonalds. She said that she did the paperwork, including accounts, for the business. However, she told the Tribunal had to give up this work in October 2015 because it became too much for her with the deterioration of her health.
The Respondent contends that there is no evidence that Ms Frenz has undertaken reasonable treatment for this condition, for example physiotherapy and specialist management, and that there is no evidence to indicate that if such further reasonable treatment were undertaken that significant functional improvement is unlikely to result.
The evidence before the Tribunal is that during the qualification period Ms Frenz had not undertaken the physiotherapy treatment and strengthening exercises recommended for her shoulder and upper arm condition, and that there is no evidence to suggest that this treatment would not have resulted in a significant functional improvement in her condition.
The Tribunal accepts the Respondent’s argument that Ms Frenz’s shoulder and upper arm condition was not permanent as it was not fully treated and stabilised during the qualification period. Accordingly, no impairment rating can be assigned to this condition.
Condition 6 – Left wrist pain / Carpal Tunnel Syndrome
The Respondent accepts that Ms Frenz’s suffered from left wrist pain as at the qualification period and the condition of carpal tunnel syndrome had been fully diagnosed at this time.
Ms Frenz reported to the JCA assessor, as reflected in the JCA report dated 22 April 2016 that she had taken medication to relieve her symptoms of this condition. However, there is no evidence that she undertook any steps to seek reasonable treatment for the condition, for example, seeing a specialist to obtain advice about possible carpal tunnel release surgery, or that she has herself undertaken any conservative treatments such as physiotherapy or wrist splits.
Ms Frenz confirmed in her evidence to the Tribunal that between July and October 2015 she undertook six courses, including a Certificate III in Children’s Services in Auburn which she would attend twice a day between 9am and 3pm. This course required her to use a computer and conduct research online for her assignments at home for about two hours per week. She also confirmed that she completed a Certificate II in Retail Skincare and Makeup through Fairfield Job Network for 15 hours per week.
Ms Frenz told the Tribunal that, during the qualification period from March to June 2016, she could not undertake administrative tasks, such as paperwork and using the computer, because her medication made her dizzy.
On the basis of the evidence before it, the Tribunal accepts the Respondent’s argument that Ms Frenz’s left wrist pain and carpal tunnel syndrome condition was not permanent as it was not fully treated and stabilised during the qualification period. Accordingly, no impairment rating can be assigned to this condition.
Conditions 7 and 8 – Enlarged thyroid gland and gastroenterological condition
The Respondent accepts that Ms Frenz’s enlarged thyroid gland and gastroenterological condition was fully diagnosed during the qualification period, but contends that it was not fully treated and stabilised at that time.
The JCA report dated 22 April 2016 states that Ms Frenz reported taking medication in relation to both conditions, and that she had not yet consulted a specialist in relation to the gastroenterological condition.
In her evidence to the Tribunal, Ms Frenz did not refer to having consulted a specialist nor undertaken treatment for either of these medical conditions.
The Tribunal accepts the Respondent’s contention that, due to the lack of corroborating evidence that Ms Frenz has undertaken reasonable treatment for either condition, the conditions were not fully treated and stabilised during the qualification period, and therefore no rating can be assigned to any resulting impairments.
CONCLUSION
The Tribunal is not satisfied that Ms Frenz’s medical conditions numbered 1-3 and 5-8 were fully diagnosed, treated and stabilised during the qualification period, and therefore no impairment rating can be assigned to any resulting functional impairment arising from these conditions.
In relation to Ms Frenz’s lower limb conditions (condition number 4) above, the Tribunal is satisfied that these were fully diagnosed, treated and stabilised during the qualification period, and that the impairment rating to be assigned is zero points under Table 3 of the Impairment Tables.
The Tribunal is therefore not satisfied that Ms Frenz satisfies the requirements of section 94(1)(b) of the Act. It is not necessary for the Tribunal to consider whether she had a continuing inability to work during the qualification period.
It is open to Ms Frenz to lodge a new DSP application based on what she claims to be the progression of her medical conditions since the time of her original DSP application, the decision on which is the subject of this review.
DECISION
The decision under review is affirmed.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

........................[sgd].............................................
Associate
Dated: 13 July 2017

Date of hearing: 18 May 2017

Applicant: In person

Solicitors for the Respondent: Mr J Kim, Department of Human Services

[2017] AATA 1083

13 July 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date of hearing:	18 May 2017
Applicant:	In person
Solicitors for the Respondent:	Mr J Kim, Department of Human Services