Fuller and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 883
•14 December 2012
[2012] AATA 883
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0372
Re
Sonia Fuller
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Date 14 December 2012 Place Adelaide The decision under review is affirmed.
........................................................................
Senior Member K Bean
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Qualification – Whether applicant’s medical conditions are fully diagnosed, investigated, treated and stabilised – Whether rateable impairments attract a rating of at least 20 points – Applicant’s rateable impairment does not attract 20 points – Decision under review affirmed.
LEGISLATION
Social Security Act 1991, s 94
REASONS FOR DECISION
Senior Member K Bean
14 December 2012
INTRODUCTION
The applicant, Ms Fuller, suffers from a number of significant medical conditions, including a condition affecting her right shoulder and a major depressive disorder. Accordingly, on 27 June 2011, she lodged a claim for disability support pension (DSP).
That claim was rejected by the original decision maker and the Authorised Review Officer (ARO) who reviewed the original decision affirmed that decision. Ms Fuller subsequently sought review of the decision of the ARO by the Social Security Appeals Tribunal (SSAT), however the SSAT also concluded that Ms Fuller was not qualified to receive DSP and affirmed the decision under review.
Ms Fuller has now sought review of the SSAT’s decision by this Tribunal, contending that she is qualified to receive DSP.
LEGISLATION AND ISSUES
In broad terms the issue before me is whether Ms Fuller was qualified for DSP as at the date of her claim on 27 June 2011,[1] or within 13 weeks of that date.[2]
[1] T10/70.
[2] Social Security (Administration) Act 1999, Schedule 2 at 4.
Qualification for DSP is governed by s 94 of the Social Security Act 1991 (the SS Act), which at the relevant time provided in part 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;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(f) the person is not qualified for disability support pension under section 94A.
Note 1:For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2:For Impairment Tables see section 23(1) and Schedule 1B.
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)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.
…”
The respondent does not dispute that Ms Fuller suffers a number of impairments within the meaning of s 94(1)(a), or that she satisfies the requirements of s 94(1)(d), (e) and (f). However, the respondent contends that Ms Fuller does not suffer from an impairment which attracts a rating of 20 points or more under the Impairment Tables as required by s 94(1)(b). The respondent also contends that Ms Fuller does not have a “continuing inability to work” within the meaning of s 94(1)(c), and does not otherwise satisfy that provision.
Therefore, the particular issues which arise for my consideration are:
(a)At the relevant time, did Ms Fuller suffer from an impairment or impairments which attracted a rating of 20 points or more under the Impairment Tables?; and
(b)If so, did Ms Fuller have a “continuing inability to work” within the meaning of s 94?
I propose to first address the question of whether Ms Fuller suffered an impairment attracting 20 or more points under the Impairment Tables.
AT THE RELEVANT TIME, DID MS FULLER HAVE AN IMPAIRMENT ATTRACTING 20 OR MORE POINTS UNDER THE IMPAIRMENT TABLES?
As I have indicated above, there is no dispute between the parties that Ms Fuller suffers from a number of medical conditions. In a medical report submitted in support of her claim for DSP, Ms Fuller’s treating general practitioner, Dr Golding, certified that as at August 2011, she was suffering from major depression, a shoulder condition which he described as “right subacromial bursitis with impingement”, osteoarthritis and chronic obstructive airways disease or “COAD”.[3]
[3] T11/71-78.
The next question which arises therefore is whether any of the conditions suffered by Ms Fuller can potentially attract an impairment rating under the Impairment Tables.
Which of Ms Fuller’s conditions can be given an impairment rating?
The introduction to the Impairment Table outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition. These include:
(a)A condition must be a fully documented, diagnosed one which has been “investigated, treated and stabilised”;
(b)“The condition must be considered to be permanent”;
(c)“Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than 2 years”; and
(d)“A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.”[4]
[4] The Impairment Tables at Schedule 1B of the Act, at [4] – [5]. These Impairment Tables were subsequently repealed and replaced with respect to claims made from 1 January 2012: Social Security and other Legislation Amendment Act 2011.
Accordingly, before considering what rating can be given for any condition, I must first consider whether any of the medical conditions from which Ms Fuller suffers are capable of attracting an impairment rating having regard to the requirements set out in the Impairment Tables. I will address that question with respect to each condition in turn, beginning with the depressive condition.
Major depression
In his report of 19 August 2011, Dr Golding said that he expected this condition to persist for more than 24 months, and that during that time he did not expect any change in the condition or its impact on Ms Fuller’s ability to function. With regard to Ms Fuller’s compliance with recommended treatment, he indicated that she was usually compliant, but also stated:
“Rejects advice about personal behavioural change, but accepts medication and counselling support.”[5]
[5] T11/73.
He made similar comments in an earlier report of 18 June 2011, although in that report he stated that Ms Fuller “requires ongoing counselling support - but resistant to this”.[6] He also stated in that report “rejects advice about personal behavioural change”.[7]
[6] T12/81.
[7] T12/81.
Consistently with his earlier reports, in a report dated 6 January 2012, Dr Golding indicated that Ms Fuller’s depression was “a long standing illness for her that causes moderate regular/persistent symptoms such that she generally functions with some difficulty”. He proceeded to state that he believed the condition attracted a rating of 10 points under the Impairment Tables.[8]
[8] T8/37.
In a further report completed on 10 March 2012, Dr Golding gave a more detailed diagnosis of “major depression with social phobia and panic attacks”. In relation to past treatment, he stated that “supportive counselling has failed due to low intellect, fixed beliefs, failure to engage”.[9] He also indicated that Ms Fuller required ongoing counselling support “to encourage engagement with others, and to promote flexible thinking”[10].
[9] Exhibit 3.
[10] Exhibit 3.
Dr Golding also gave oral evidence at the hearing, in the course of which he clarified a number of the opinions expressed in his written reports. During his evidence he explained that when he completed his first report in support of Ms Fuller’s application for DSP, on 18 June 2011, he thought she may be suffering from an adjustment disorder with depressed mood rather than major depression. However he considered that the condition had since progressed to one of major depression, being the diagnosis recorded in his report of 19 August 2011.
Dr Golding also stated that he remained of the view that Ms Fuller had failed to engage with supportive counselling. He said that if she had engaged with this, it would have been likely to improve her condition. He confirmed that by the time he completed his fourth report, on 10 March 2012, Ms Fuller had ceased attending counselling altogether and prior to that she had not effectively engaged with counselling. He explained that he did not believe that medication alone was sufficient to treat Ms Fuller’s depression, and stated that psychological techniques such as cognitive behavioural therapy had been shown to be at least as effective as medication in treating depression and anxiety. He said in Ms Fuller’s case, he thought the most effective treatment would be a combination of medication and psychological intervention. However in his opinion, although medication had been trialled, psychological treatment had not been effectively trialled by Ms Fuller. Accordingly, he did not consider that all effective treatment for Ms Fuller’s major depression had been explored. Dr Golding accordingly stated that as at the time he completed his second report, on 19 August 2011, in his opinion Ms Fuller’s condition had not been adequately treated due to her failure to engage with supportive psychological counselling.
For completeness, I note that Ms Fuller’s own evidence was consistent with that of Dr Golding as to her attendance at counselling sessions. She confirmed that although she had been attending a counsellor, she had stopped seeing that person before the date of the SSAT hearing on 7 December 2011, and had not seen a counsellor or psychologist since then.
As there is no other medical evidence before me, clearly Dr Golding’s evidence is the most relevant evidence on the question of whether Ms Fuller’s depression has been fully diagnosed, treated and stabilised. Having regard to his evidence, I am satisfied that Ms Fuller’s depressive condition has been properly diagnosed and that during the relevant period she was accurately diagnosed as suffering from major depression. However, although Dr Golding gave an impairment rating for this condition in his report of 6 January 2012, in light of his evidence that Ms Fuller has not effectively engaged with supportive counselling as a means of treating her condition, I am not satisfied that the condition has been fully treated. As Dr Golding has indicated that he believes the condition would improve with effective counselling, I am also not satisfied that the condition is fully stabilised. Since it necessarily follows that the condition was also not fully treated or stabilised during the relevant period, I have therefore concluded that no impairment rating can be given for Ms Fuller’s major depression.
Right shoulder condition
It is clear from all of the evidence that as at the time she submitted her claim and throughout the relevant period, Ms Fuller was suffering from right subacromial bursitis with impingement. However it is also clear that Dr Golding has consistently indicated that Ms Fuller was likely to need surgical decompression for this condition. Further in her evidence at the hearing, Ms Fuller confirmed that she was scheduled to have this decompression surgery as at the end of October 2012. When he was informed of this scheduled surgery at the hearing, Dr Golding also indicated that he would expect the condition to improve following this surgery, and confirmed that he did not regard the condition as fully treated or stabilised.
Having regard to the fact that, as at the time of the hearing, Ms Fuller was due to undergo surgical decompression of her right shoulder at the end of October 2012 and that this surgery was expected to significantly improve her condition, I am not satisfied that as at 27 June 2011 or within 13 weeks of that date, the condition had been fully treated or stabilised.
Accordingly, I have also concluded that no impairment rating can be allocated for this condition.
COAD
On the evidence before me, I am satisfied that Ms Fuller suffers from this condition and that it has been fully diagnosed. However in relation to treatment, Dr Golding has consistently indicated that the most effective treatment for this condition would be for Ms Fuller to cease smoking.[11] He also stated in his oral evidence that, so far as he was aware, all of Ms Fuller’s attempts to stop smoking have been unsuccessful to date.
[11] T12/84, T11/76 and Exhibit 3, p 6.
Given Dr Golding’s evidence that this condition would improve if Ms Fuller stopped smoking, I am not satisfied that the condition has been fully treated or stabilised, or that it had been fully treated and stabilised during the relevant period. Accordingly, I have also concluded that no impairment points can be allocated for this condition.
Osteoarthritis
In each of his reports of 18 June 2011, 19 August 2011 and 10 March 2012, Dr Golding listed Ms Fuller’s osteoarthritis condition in the section of the report form reserved for conditions that are “generally well managed and that cause minimal or limited impact on ability to function”.[12] In his first report he indicated that the impact of the condition on Ms Fuller’s ability to function was that she was “stiff and slow in the mornings until mobile”. He made the same statement in his report of 19 August 2011 and again in his report of 10 March 2012, although on that occasion he was more specific as to the part of her body affected, indicating that she had osteoarthritis of her right knee.[13]
[12] T12/84.
[13] Exhibit 3.
In her oral evidence, Ms Fuller stated that she considered she had osteoarthritis in her neck, back and right knee and said she also had trouble with her hands. She said the symptoms in her hands caused her problems with chopping and grasping objects and a couple of times per week she would be in so much pain that it was “hard to do things”. However she conceded in cross-examination that, although she had told him about her right knee, she may not have mentioned to Dr Golding the symptoms she was experiencing in other parts of her body.
In his oral evidence, Dr Golding said that Ms Fuller had only complained to him of discomfort in her right knee, and an x-ray had been undertaken which showed minimal changes in the right knee. He added that Ms Fuller had complained to him of suffering a fall whilst she was overseas which affected her neck and thoracic spine. However he said Ms Fuller had first mentioned this in June 2012, and this was the only time she had discussed this with him.
In relation to the osteoarthritis in her right knee, Dr Golding said he could accept that Ms Fuller may suffer soreness in her knee after walking for 30 to 45 minutes. However, he did not consider that Ms Fuller’s osteoarthritis was significantly interfering with her daily activities. He also did not consider that Ms Fuller’s osteoarthritis gave rise to any rateable impairment under the Impairment Tables.
This issue was also addressed by Mr Ron Braddock, a Job Capacity Assessor who completed a Job Capacity Assessment Report on 4 August 2011, and also gave brief evidence at the hearing. In his report, Mr Braddock indicated that Ms Fuller’s osteoarthritis condition was permanent, fully diagnosed, fully treated and fully stabilised, stating:
“Medical report by A Golding dated 18/6/2011 indicates OA onset in 2009 affecting neck, back and both hands.”
However at the hearing, Mr Braddock clarified that it was Ms Fuller who had told him that the osteoarthritis affected her neck, back and both hands, and those body parts had not been referred to by Dr Golding.
In his report, Mr Braddock nevertheless proceeded to allocate an impairment rating for osteoarthritis affecting Ms Fuller’s neck, back and both hands. However it is clear from Dr Golding’s evidence that the problems Ms Fuller has with these areas of her body have not been discussed with Dr Golding and nor have they been fully diagnosed or treated by him or, on the evidence before me, any other medical practitioner. Accordingly I do not consider that any osteoarthritis affecting Ms Fuller’s neck, back or hands gives rise to an impairment which can be assigned a rating under the Impairment Tables.
However I am satisfied that the osteoarthritis of Ms Fuller’s right knee has been fully diagnosed, investigated, treated and stabilised. Accordingly, I regard that condition as capable of being given an impairment rating under the Impairment Tables.
Summary
It follows that the only condition which I consider can be given an impairment rating is the osteoarthritis of Ms Fuller’s right knee. Accordingly I will proceed to consider what rating should be assigned for that condition.
What impairment rating should be given for Ms Fuller’s right knee condition?
The table which is appropriate for assessing the impairment rating to be given for Ms Fuller’s right knee osteoarthritis is Table 4 relating to function of the lower limbs, which relevantly provides as follows:
Table 4 FUNCTION OF THE LOWER LIMBS Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions. Rating Criteria NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m. TEN Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.
TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or
Unable to walk or stand but independently mobile using a self-propelled wheelchair.
In allocating a rating under this table, it is highly relevant in my view that in his reports completed during the relevant period, Dr Golding indicated that he regarded Ms Fuller’s osteoarthritis condition as being well managed and causing minimal or limited impact on her ability to function. He also indicated in his oral evidence that he expected she would develop soreness only after walking for 30 to 45 minutes, and stated that he did not consider the condition attracted a rating under the Impairment Tables.
In light of that evidence, and in the absence of any other medical evidence directed to this issue, I am not satisfied that Ms Fuller’s condition attracts a rating of 10 under Table 4. In particular, I am not satisfied that she suffers a “demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking …”. Nor am I satisfied on the evidence that her condition causes moderate interference with “climbing, squatting, sitting or kneeling”. I am also not satisfied that “pain or claudication restricts walking to 250-500 m or less, at a slow to moderate pace (4 km/h)”.
It therefore follows that, in my view, whilst Ms Fuller’s osteoarthritis of the right knee is a permanent condition which has been fully diagnosed, investigated, treated and stabilised, it attracts a nil rating under the Impairment Tables, and attracted a nil rating during the relevant period.
CONCLUSION
For the reasons given above, whilst Ms Fuller suffers from a number of significant medical conditions, I have concluded that during the relevant period only one of her medical conditions gave rise to an impairment which could be allocated an impairment rating. That condition, being osteoarthritis of her right knee, attracted a nil rating under the Impairment Tables, with the result that her overall rating under the Impairment Tables was also nil.
As Ms Fuller did not have an impairment attracting 20 or more points under the Impairment Tables at the time she lodged her claim, on 27 June 2011, or within 13 weeks of that date, it follows that she did not satisfy s 94(1)(b) and therefore did not qualify for DSP during that period. In these circumstances, it is unnecessary for me to proceed to consider whether, during that period, Ms Fuller had a “continuing inability to work” within the meaning of s 94(1)(c).
As Ms Fuller was not qualified for DSP at the time she lodged her claim or within 13 weeks of that date, I am obliged to affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of
Senior Member K Bean....[Sgnd] ....
Associate
Dated 14 December 2012
Date(s) of hearing 17 October 2012 Applicant In person Advocate for the Respondent Mr A Schatz Solicitors for the Respondent Centrelink Program Litigation and Review Branch
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