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

Gaitan and Secretary, Department of Social Services (Social services second review) [2019] AATA 395 (13 March 2019)
Division:GENERAL DIVISION
File Number: 2018/2109
Re:Ms Marina Gaitan
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:13 March 2019
Place:Melbourne

The decision under review is affirmed.
.......[sgd].................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
SOCIAL SECURITY – disability support pension – physical impairment – whether qualified for disability support pension at time of claim – whether conditions fully investigated, documented, diagnosed, stabilised and permanent – whether Applicant had an impairment rating of 20 points or more under the impairment tables – decision affirmed
Legislation
Social Security Act 1991;
Social Security (Administration) Act 1999;
Cases
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Bobera and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2012] AATA 922
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
13 March 2019
INTRODUCTION

On 11 July 2017 the applicant, Ms Marina Gaitan, lodged a claim for Disability Support Pension (DSP). A Centrelink employee made the decision to reject the claim on 31 July 2017 (the original decision). On 22 November 2017, an Authorised Review Officer affirmed the decision to reject the claim (the ARO decision).
The applicant then sought a review of the ARO decision by the Social Services and Child Support Division of this Tribunal (the AAT1).
After conducting a hearing, on 20 March 2018 the AAT1 again affirmed the decision to reject the claim (the AAT1 decision).
On 18 April 2018 the applicant sought a review of the AAT1 decision by the General Division of this Tribunal.
BACKGROUND
The conditions the applicant is relying on as the basis for her DSP claim can be categorised as follows:
(a)Spinal conditions including: cervical spine condition, thoracic spine condition and lumbar spine condition.
(b)Limb conditions including: left carpal tunnel syndrome, left common extensor tendinosis, trigger finger, right shoulder condition, left shoulder condition and hand osteoarthritis.
(c)Miscellaneous conditions including: tinnitus/otitis externa, severe obstructive sleep apnoea, mild fatty liver, mild hypercholesterolaemia, impaired fasting glucose and hypertension, recurrent cellulitis of the left thigh and depression.
The respondent concedes that the applicant has actively participated in a program of support for the purpose of section 94(2) of the Social Security Act 1991.
RELEVANT LAW
The relevant law is set out in the:
1.Social Security Act 1991 (the Act);
2.Social Security (Administration) Act 1999 (the Administration Act);
3.Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011; and
4.The Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
ISSUE
The Administration Act provides, at clause 4(1) of Schedule 2, that:
If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Therefore, the issue before the Tribunal is whether the applicant was qualified for DSP on the date she lodged her claim, 11 July 2017, or at any time during the 13 week period from 12 July 2017 to 10 October 2017 (the qualification period). See: Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606; Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; and Bobera and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2012] AATA 922.
This requires consideration of section 94 of the Act to determine whether the applicant had:
(a)a physical, intellectual or psychiatric impairment; and
(b)the impairment was fully diagnosed, treated and stabilised and attracted an impairment rating of at least 20 points under the Impairment Tables; and
(c)a continuing inability to work.
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 Determination).
An explanation of the purpose of the Impairment Tables is set out in subsection 5(2) of the Determination, which states that the Impairment Tables:
(a)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
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Note: 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.
To apply the Impairment Tables the condition must be considered permanent and the impairment that results from the condition must be more likely than not, in light of all available evidence, to persist for more than two years (subsection 6(3) of the Determination). For a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and been fully treated and fully stabilised and be likely to last for more than two years (subsections 6(4), (5) and (6) of the Determination).
In determining whether or not a condition is fully diagnosed and fully treated, subsection 6(5) of the Determination states that:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
A condition is only considered fully stabilised if, pursuant to subsection 6(6) of the Determination:
(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.
Reasonable treatment is defined in subsection 6(7) of the Determination:
For the purposes of subsection 6(6), reasonable treatment is 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.
EVIDENCE
The Tribunal received into evidence documents lodged by the Department (T-documents and Supplementary T-documents). The Tribunal also heard oral testimony from the applicant.
CONSIDERATION
The respondent, in written submissions, did not dispute that the applicant had impairments in the qualification period and accepts that she satisfied section 94(1)(a) of the Act.
The Tribunal considered the medical material in the documents received into evidence. The Tribunal has also considered the evidence given by the applicant at the hearing. On the basis of the medical evidence before the Tribunal, the Tribunal finds that the applicant satisfies section 94(1)(a) of the Act in having a physical and psychological impairment as at the date she made her claim for DSP.
The question then turns to whether the conditions were fully diagnosed, treated and stabilised; and if so, whether they collectively attract an impairment rating of at least 20 points under the Impairment Tables.
Fully diagnosed, treated and stabilised
Hand osteoarthritis
The respondent conceded that the applicant’s hand osteoarthritis was fully diagnosed, fully treated and fully stabilised. Further, the respondent contends that the functional impact experienced by the applicant as at the qualification period warrants a 5 points rating under Table 2 of the Impairment Tables.
On 6 September 2018, Dr Dahalan informed the HPAU medical adviser that, as a result of her hand osteoarthritis, the applicant had trouble making a fist, difficulty picking up a 1 litre carton, using a pencil, doing up buttons and unscrewing a cap on a soft drink bottle.
As noted in the respondent’s SFIC, on 26 October 2018, a HPAU medical adviser reported that:
(a)Some of the applicant’s upper limb function difficulties would be related to her left shoulder and trigger finger conditions, which she did not consider to be fully treated and stabilised;
(b)The functional impact from conditions that are not fully treated and stabilised cannot be taken into account in assigning an impairment rating;
(c)Dr Glew was the applicant’s GP during the qualification period. The applicant’s history shows that she saw Dr Glew on 31 occasions prior to the end of the qualification period, and then on a further 15 occasions until 29 May 2018. This indicates that Dr Glew was very familiar with the applicant’s medical conditions as they were in the qualification period.
(d)On 7 September 2018, Dr Glew informed the HPAU Medical Adviser that she had not specifically checked for functional impairment as she had not considered it to be necessary.
(e)Taking into account the functional impact from her hand osteoarthritis only, the Medical Adviser was of the view that 5 points could be assigned under Table 2 as the applicant would have had some difficulty picking up heavier objects, handling very small objects and doing up buttons.
The evidence from the HPAU medical report on the functional impact of this condition is consistent with the evidence the applicant provided to the Tribunal. The applicant described having difficulty “sometimes” clasping objects and getting dressed. The applicant described previously having significant difficulties with day-to-day activities, although that evidence related to a specific period at around the time she ceased employment.
For these reasons, the Tribunal is satisfied that the hand osteoarthritis is fully diagnosed, treated and stabilised and is likely to persist for more than 2 years. Having regard to the evidence of functional impact of this impairment, the Tribunal is satisfied that the appropriate rating is a rating of 5 points under Table 2 of the Impairment Tables.
Fully diagnosed but not fully treated or stabilised
For the reasons set out below, the Tribunal is satisfied that each of the following conditions were fully diagnosed within the qualification period but not fully treated and stabilised during that period:
Spinal conditions
The respondent accepts that the applicant’s spinal conditions were fully diagnosed in the qualification period but contends that they were not fully treated and stabilised and therefore attract no points under the Impairment Tables.
On 24 March 2017, consultant rheumatologist, Dr Hor, recommended that the applicant be prescribed an additional pain modulating medication, Lyrica. On 16 June 2017 Dr Hor recommended the Lyrica dosage be increased. He also noted that the applicant had declined recommended nerve root injections. In her evidence before the Tribunal the applicant conceded that Dr Hor’s recommendations were not fully complied with. More specifically, the applicant told the Tribunal she did not take the increased dosage of Lyrica or undertake the nerve root injections as recommended. The Tribunal also received evidence of the applicant’s PBS history which suggested that the applicant’s use of the medication she was being prescribed for the conditions was sporadic. Again, in her oral testimony, the applicant conceded that she did not like taking medication and that she only took it when she felt “particularly unwell”. She told the Tribunal “I avoided taking the tablets”.
In the HPAU medical report dated 26 October 2018, the Medical Officer noted that the medications the applicant had been prescribed can often be of “significant efficacy in neuropathic pain” and concluded that as the applicant had been non-compliant in her use of the prescribed medication, in her opinion the spinal conditions were not fully treated and stabilised during the qualification period.
On 7 September 2017, the Job Capacity Assessor noted that the applicant was due to see a neurosurgeon in relation to her spinal conditions. There was subsequent evidence that the applicant had seen the neurosurgeon and was due for another appointment. And yet there is no evidence that the applicant followed up this further appointment.
On 31 July 2018, a report from physiotherapist Mr Silk noted that the applicant had been undergoing a pain management program; and that it had helped in relation to her spinal conditions; and that her symptoms had stabilised or improved.
Left carpal tunnel syndrome
The respondent contends that the left carpal tunnel syndrome is fully diagnosed but not fully treated or stabilised; and it therefore attracts no points under the Impairment Tables.
On 6 December 2013, Dr Stockman noted that he recommended the applicant be referred to a neurosurgeon. The applicant’s GP also noted on or after March 2014 that the applicant’s left carpal tunnel syndrome was amenable to surgery.
As referred to in the respondent’s SFIC, the HPAU medical report dated 26 October 2018 noted that for these types of conditions surgery is normally recommended and is successful in about 90% of cases. The Medical Officer noted that in her clinical experience the applicant should be able to manage on her own after surgery; especially as the surgery would be on her left hand and she is right handed.
The applicant gave evidence that she had decided that she did not want to undergo surgery for her left carpal tunnel syndrome because she was ‘tired’. She told the Tribunal “The Dr said to do it but I said no”.
Left common extensor tendinosis
The respondent contends that the left common extensor tendinosis is fully diagnosed but not fully treated or stabilised and therefore attracts no points under the Impairment Tables.
As referred to in the respondent’s SFIC, the HPAU medical report dated 26 October 2018 noted that:
(a)rest is frequently recommended for initial treatment of this condition, although physiotherapy may hasten recovery;
(b)most patients recover within one year with or without treatment; and
(c)the elbow condition was not fully treated or stabilised, as of the qualification period, as it was likely to resolve or significantly improve within the following two years.
There was otherwise an absence of credible evidence before the Tribunal in relation to this condition.
Trigger finger condition
The respondent contends that the trigger finger condition is fully diagnosed but not fully treated or stabilised and therefore attracts no points under the Impairment Tables.
On 15 September 2015, Dr Dahalan reported that the applicant had been treated with “pain killers, physiotherapy and steroid injections”.
There was also evidence before the Tribunal that the applicant had been recommended to see a hand surgeon to address the condition.
In her evidence the applicant conceded that she had not seen the hand surgeon nor undertaken the injections as recommended.
Right shoulder condition
The respondent contends that the right shoulder condition is fully diagnosed but not fully treated or stabilised and therefore attracts no points under the Impairment Tables.
There was no substantive evidence before the Tribunal that related to the right shoulder condition since late 2015 and no substantive evidence in relation to treatment or prognosis.
Left shoulder condition
The respondent contends that the left shoulder condition is fully diagnosed but not fully treated or stabilised and therefore attracts no points under the Impairment Tables.
There was no evidence before the Tribunal of targeted physiotherapy as at the qualification period and insufficient evidence of cortisone injection treatment; although the applicant did tell the Tribunal that she had an injection for her left shoulder “a long time ago”.
On 20 March 2018, the applicant gave evidence before AAT1 that after 6 months of physiotherapy targeting her shoulder joints she had experienced significant improvement in function. In her oral evidence before this Tribunal the applicant described a course of acupuncture she had undertaken in 2017 and 2018 had also resulted in improved function. The applicant told the Tribunal the acupuncture had helped “quite a lot”.
Her physiotherapist, Mr Silk, noted in November 2017 that the applicant was reluctant to consider further shoulder injections. The applicant conceded that she had not had any further shoulder injections despite a recommendation to do so.
Left tibialis posterior tendonitis
The respondent contends that the left tibialis posterior tendonitis is fully diagnosed but not fully treated or stabilised and therefore attracts no points under the Impairment Tables.
On 4 March 2014, Dr Stockman referred the applicant for an ultrasound guided injection into the left tibialis. In the HPAU report dated 26 October 2018, the medical adviser noted that it was unclear that the applicant had undertaken the ultrasound guided injection. The applicant’s PBS records also suggest that the injection was not undertaken.
Left trochanteric bursitis
The respondent contends that the left trochanteric bursitis is fully diagnosed but not fully treated or stabilised and therefore attracts no points under the Impairment Tables.
On 16 June 2017, Dr Hor recommended a bursal injection to treat the condition. There was no evidence before the Tribunal that the applicant undertook the injection; and the applicant conceded in her evidence that she had not undertaken the injection.
General therapies
In her oral evidence, the applicant told the Tribunal that she had undergone a significant pain management program between July and September 2018 and that it had resulted in significant improvement in relation to her physical pain and function generally. She also gave evidence that she had undergone acupuncture therapy towards the end of 2017 which she stated had “helped me a lot”. In addition, the applicant described undertaking physiotherapy with Mr Silk toward the end of 2017. She told the Tribunal that she “got a lot of benefit because little by little I could lift my arms up. I got a lot of relief.”

The improvement the applicant described through undertaking these therapies was in contrast with the way she described her physical state at the time she first saw Dr Hor, in the early part of 2017. The applicant described her physical state when she first saw Dr Hor as being “very bad”. The applicant told the Tribunal that during this period she “couldn’t walk. I was losing balance. I was in a lot of pain.”
The evidence before the Tribunal strongly suggests that the applicant has not been fully compliant with recommended treatment in relation to her physical conditions described above. Further, the evidence strongly suggests that the applicant has undertaken a number of additional therapies after the conclusion of the qualification period that have resulted in improvement in her pain management and function.
For these reasons, the Tribunal is satisfied that the applicant’s spinal conditions, left carpal tunnel syndrome, left common extensor tendinosis, trigger finger condition, right shoulder condition, left shoulder condition, left tibialis posterior tendonitis and left trochanteric bursitis were each fully diagnosed but not fully treated or stabilised during the qualification period.
Not fully diagnosed, treated or stabilised
Recurrent cellulitis of the left thigh
The respondent contends that the recurrent cellulitis of the left thigh was not fully diagnosed, fully treated or stabilised during the qualification period and therefore attracts no points under the Impairment Tables.
The evidence before the Tribunal was that the condition was only fully diagnosed by Dr Dahalan on 24 July 2018, after the end of the qualification period. There was no compelling evidence, in relation to treatment or prognosis for the condition. In her evidence, the applicant did not dispute this conclusion.
Tinnitus/Otitis Externa
The respondent contends that the applicant’s Tinnitus/Otitis Externa condition was not fully diagnosed, fully treated or stabilised during the qualification period and therefore attracts no points under the Impairment Tables.
The Impairment Tables require that the diagnosis of this condition must be made by an appropriately qualified medical practitioner, with the required supporting evidence from an audiologist or ENT specialist prior to the end of the qualification period.
On 18 January 2018, an audiologist performed an audiogram and reported that the applicant has mild bilateral sensorineural hearing loss. This assessment was outside the qualification period.
In her evidence before the Tribunal the applicant said that she had consulted with the audiologist in early 2017. However there is no corroborating evidence before the Tribunal to support this claim as required under the Impairment Tables.
In addition, there was no compelling evidence before the Tribunal in relation to the treatment or prognosis for this condition.
Severe obstructive sleep apnoea
The respondent contends that the applicant’s severe obstructive sleep apnoea condition was not fully diagnosed, fully treated or stabilised during the qualification period and therefore attracts no points under the Impairment Tables.
The earliest evidence of the condition before the Tribunal was a report of Dr Frenkel on 8 March 2018, which is well outside the qualification period. The applicant acknowledged that she had not been diagnosed of this condition before that time.
Mild fatty liver, mild hypercholesterolaemia, impaired fasting glucose and hypertension.
The respondent contends that these conditions were not fully diagnosed, fully treated or stabilised during the qualification period and therefore attracts no points under the Impairment Tables.
On 24 July 2018, Dr Dahalan reported that the applicant had mild fatty liver, mild hypercholesterolaemia, impaired fasting glucose and hypertension however, this is outside the qualification period. While the applicant told the Tribunal that other doctors had mentioned her fatty liver before, there was no corroborating evidence of this before the Tribunal.
Depression
On 24 July 2018, Dr Dahalan made reference to the applicant experiencing depression. However, there is no corroborating evidence before the Tribunal that the applicant has been diagnosed with depression by either a psychiatrist or clinical psychologist as required under the Impairment Tables.
In her evidence before the Tribunal the applicant said that she believed she had seen a clinical psychologist before the qualification period. However it was clear on the evidence that the applicant was referring to her consultation with Ms Lipkewycz during the first half of 2017. Ms Lipkewycz is not a clinical psychologist but rather a mental health clinician.
For these reasons, the Tribunal is satisfied that the applicant’s recurrent cellulitis of the left thigh, severe obstructive sleep apnoea, mild fatty liver, mild hypercholesterolaemia, impaired fasting glucose and hypertension and depression were each not fully diagnosed, treated or stabilised during the qualification period.
CONCLUSION
For the reasons set out above, with the exception of the applicant’s hand osteoarthritis condition, the Tribunal finds that each of the applicant’s conditions are either not fully diagnosed, treated or stabilised and therefore do not qualify for an impairment rating under the Impairment Tables. It is therefore not necessary for the Tribunal to consider the functional impact of these conditions.
As referred to above, the Tribunal finds that the applicant’s hand osteoarthritis condition was fully diagnosed, treated and stabilised. Based on the evidence of functional impact, the Tribunal is satisfied that the condition warrants a rating of 5 points under the Table 2 of the Impairment Tables. This is less than the 20 points required to make out a claim. Accordingly, the applicant’s DSP claim made on 11 July 2017 cannot succeed.
In these circumstances, it is not necessary for the Tribunal to go on to consider whether the applicant had a continuing inability to work at the time of her claim.
DECISION
The decision under review is affirmed.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

…[sgd]…………………………………….
Associate
Dated: 13 March 2019

Date of hearing: 18 January 2019

Solicitors for the Applicant:
Self-Represented

Solicitors for the Respondent:
Nam Nguyen
Sparke Helmore Lawyers

[2019] AATA 395

13 March 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	18 January 2019
Solicitors for the Applicant:	Self-Represented
Solicitors for the Respondent:	Nam Nguyen Sparke Helmore Lawyers