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

[2018] AATA 675

GFHF and Secretary, Department of Social Services (Social services second review) [2018] AATA 675 (28 March 2018)

Division:GENERAL DIVISION

File Number:           2017/1603

Re:GFHF  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:28 March 2018

Place:Melbourne

The Tribunal affirms the decision under review.

[sgd].......................................................

Miss E A Shanahan, Member

SOCIAL SECURITY – claim for disability support pension – lumbar spine and bilateral knee injuries – work related – compensated including impairment lump sum payment – ongoing pain and secondary psychiatric disorder – 25 points impairment rating assigned by Administrative Appeals Tribunal, Social Security and Child Support Division – no Program of Support completed – no vocational training or assistance in job placement – rehabilitation program undertaken for many years under WorkCover provisions – decision affirmed

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Active Participation for Disability Support Pension) Determination 2014

Cases

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Tey and Secretary, Department of Social Services [2013] AATA 753

Re Konopa and Secretary, Department of Social Security [2016] AATA 627

REASONS FOR DECISION

Miss E A Shanahan, Member

28 March 2018

1. GFHF lodged a claim with Centrelink for the disability support pension on 16 February 2016. Centrelink is the service delivery agency for the Department of Social Services. The claim was based on the medical conditions of chronic back pain, patellofemoral chondromalacia and a secondary adjustment disorder with depressed and anxious mood. All of these conditions arose from physical injuries incurred in 2002 and 2007 in the course of GFHF’s employment with Safeway/Woolworths, for whom she worked from 1991 until 2007. She was first employed in the Variety section and then the delicatessen. After the 2002 injury she worked on a part-time basis, part of which was spent in the bakery. She has other medical conditions that do not impact on her capacity for work.

2. The claim was rejected by a Centrelink officer on 21 July 2016. The rejection was based on a job capacity assessment (JCA) by a rehabilitation counsellor. The JCA recommended an impairment rating of 15 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables). This rating consisted of 10 points for the spinal disorder and 5 points for the lower limb deficiency. The adjustment disorder was assessed as being diagnosed but not fully treated. GFHF applied for internal review by an authorised review officer (ARO).  The ARO conducted the review on 27 September 2006 and affirmed the decision.

3. GFHF applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) for review of this decision. The AAT Tier 1 assessed the impairment rating at 25 points, confirming the 10 points for a spinal disorder, 5 points for a lower limb disorder and assigning 10 points for the adjustment disorder. However, the application was denied as GFHF had not undertaken a program of support as required by s 94 of the Social Security Act 1991 (the Act).

4. GFHF lodged an application with the General Division of the Administrative Appeals Tribunal (AAT Tier 2) on 22 March 2017.

5. At the hearing conducted on 17 January 2018, GFHF was assisted by Mr Pat Carson and the Secretary, Department of Social Services (the Secretary) was represented by Mr Joshua Lessing, solicitor of Sparke Helmore Lawyers. The Tribunal was provided with the documentation pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, the so-called T-Documents and Supplementary T-Documents, which were assigned the exhibit number of R1. The applicant submitted documentation relating to her attendance at The Sports Injury Clinic (TSIC) over  15 years, during which time she had received physiotherapy, massage, weekly attendances with a psychologist, and at some period, a pain management program delivered by a naturopath (Exhibit A1).

   THE ISSUES BEFORE THE TRIBUNAL

6. The issue has been identified as being narrow and well defined. GFHF did not challenge the impairment rating assigned by the AAT Tier 1 decision and readily agreed that it was a fair assessment of her medical conditions. The basis of her appeal to the AAT Tier 2 was that she had undertaken the equivalent of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) requirement in the form of her rehabilitation program at TSIC. This argument was rejected at the AAT Tier 1 level.

   BACKGROUND TO THE APPLICATION

7. On 12 January 2002 GFHF was knocked to the ground when a trolley carrying boxes of chicken overbalanced. She fell to the ground with two boxes of chicken landing on top of her. She immediately experienced right low back pain that has continued ever since. She was initially treated with non-steroidal anti-inflammatory medication (NSAIDs). This was minimally effective. In November 2002 she developed gastric symptomatology, collapsed when she got out of bed, was hospitalised and found to have a bleeding gastric ulcer. The ulcer was attributed by the gastroenterologists to her treatment with NSAIDs. She has taken Nexium since this event in 2002. Repeat gastroscopies have shown that the gastric ulcer is fully healed.

8. GFHF suffered another injury in 2007 when working part time on light duties at Safeway. She had been kneeling to clean equipment in the bakery and found she could not arise from the kneeling position. Thereafter, she experienced pain in both knees. This has been diagnosed as patellofemoral chondromalacia. GFHF ceased work in 2007. She claims her entire life has changed as a result of her injuries and her loss of employment because she greatly enjoyed her work, she frequently performed overtime duties, and she had hoped to become a departmental manager.  She also claims her social life diminished as a result of the injuries and her second marriage failed and ended in divorce. Liability for the back injury was accepted and she was paid compensation and otherwise assisted by WorkCover Victoria.  Her compensation payments were reduced when she returned to part-time work.

9. In 2008 GFHF lodged a claim for the disability support pension (DSP) and this was granted. The payment of DSP was cancelled in 2011 after WorkCover reinstated her compensation in terms of weekly wages following the development of the knee chondromalacia, which was accepted as work-caused. She paid back some of the DSP payments. She received weekly payments and compensation in the form of medical treatment and attendance at TSIC where, as previously stated, she was provided with physiotherapy, Pilates, pain management and cognitive behavioural therapy (CBT). GFHF maintained the rehabilitation program at TSIC continuously and in particular between 2013 and 2016. This program of rehabilitation had been initiated by GFHF, her general practitioner Dr Froebel and WorkCover Victoria.  Between 2013 and 2016 GFHF had been certified as totally incapacitated for work. She gave evidence that she was regarded as an insurance risk. Between 2013 and 2016 GFHF consulted Centrelink on a regular basis. She had provided Centrelink with reports from her general practitioner, a physiotherapist and her psychologist.

10. In November 2013 GFHF, having been assessed as having a permanent impairment rating of 10 per cent by medical panels of WorkCover Victoria, took action in the County Court. Her claim was settled prior to the hearing. She received a lump sum payment and, as a result, a preclusion period was imposed until February 2016.

11. GFHF said she was assessed by Konekt, an occupational health company, on referral from Woolworths and had been advised that training was not required or was not available. She had initiated this contact with Konekt.

12. GFHF is adamant that between 2007 and 2017 she had no capacity for work, based on the level of symptomatology and the advice of her general practitioner. She has been advised that she will possibly need total knee replacements in 10 to 15 years. She has had arthroscopies and minor procedures on both knees. Her lumbar spine does not reveal any major vertebral or disc pathology on MRI. The opinion of various experts is that her pain is musculoligamentous not disc or vertebral body in origin. There is no evidence of nerve root compression.

    Evidence before the Tribunal

13. GFHF gave evidence confirming the history of her various medical conditions and their treatment. The latter had been limited because of her intolerance to various medications. She was quite certain that she was incapacitated for work and had lost everything as a result of being unable to work.

14. Under cross-examination, GFHF agreed that she was not challenging the impairment rating assigned by the AAT Tier 1. She explained that her symptoms varied from day to day. For example, some days she can drive for 30 minutes and other days she cannot; on some days she can sit and stand for long periods; and at other times her knees are so painful they frequently give way and she falls. As a result of this variation in symptomatology she did not believe that she could perform sedentary work such as a desk job.  She said no one would employ somebody with such fluctuating symptomatology.

15. GFHF agreed with Mr Lessing’s suggestion that the evidence currently indicated that her knees were her primary problem. However, she believed that both conditions played a role in her current incapacity. To her knowledge, most of the treatment she was receiving at TSIC was funded by WorkCover, although on occasions she paid for some of the treatments.  She was certain the attendances with the registered psychologist were paid for by WorkCover.

16. GFHF agreed that she had never undergone any retraining between 2013 and 2016.  She had discussed this with Konekt, which had performed a vocational assessment in August 2011. She had also discussed retraining with her general practitioner, Dr Friebel; but neither Konekt nor Dr Friebel considered retraining was indicated.

17. It was brought to GFHF’s attention that, in completing the DSP claim form submitted in 2016, she had answered question no. 180 by ticking the No box. This particular question related to participation in any programs to find:

    work, stay in a job, return to work, manage your injury or help with vocational rehabilitation, gaining new skills, work experience or training.

    It was suggested to her that she answered no despite her claim now that the attendance at TSIC equated to a program of support. She said that she had not understood or had misinterpreted the question. She had completed the application form with the assistance of her WorkCover claims manager.

    DOCUMENTARY EVIDENCE

    Medical Evidence

18. There is a considerable volume of medical reports attesting to her back and knee injuries. As this is not in dispute it is not itemised in this decision. The general practitioner, Dr Friebel has provided ongoing reports to the effect that GFHF has not attended a program for retraining as she has not been medically fit to do so (ST1). Dr Friebel states that the applicant ... has attended other forms of programs of support ... and itemises these as physiotherapy Pilates, massage therapy and regular attendance at a psychologist.

19. There have been several reports from the registered treating psychologist Ms Wood, who has provided CBT. It is noted that Ms Wood is not a clinical psychologist and thus her diagnosis of a major depressive disorder does not meet the requirements of the Act. In contrast, the reports of the psychiatrist, Dr Kaplan, provide a diagnosis of an adjustment disorder with anxious and depressed mood. Ms Wood has reported that despite ongoing treatment for many years the symptoms remain unaltered.

20. The senior physiotherapist at TSIC (Ms McCarthy) has provided a report detailing GFHF’s attendance at clinical Pilates, and exercise rehabilitation for her knees and back. GFHF has attended for these forms of treatment since August 2004. In addition, she has been given a home exercise program. Ms McCarthy records that GFHF frequently misses her appointments because of pain and/or her knee giving way. In the letter dated 16 March 2017, Ms McCarthy said that given the lack of progress GFHF should no longer attend and should rely on the comprehensive graded exercises she had been given to complete at home.

    Job Capacity Assessment

21. These have been referred to under BACKGROUND TO THE APPLICATION. The maximum impairment rating provided was 15; and while it was recommended that a referral to an employment services provider be made this did not occur.

    RELEVANT LEGISLATION

22. The eligibility for DSP is set out in s 94 of the Act which states:

    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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and ...

    Section 94(3B) of the Act, relating to a severe impairment is not attracted in this matter. s 94(2)(aa) addresses GFHF’s situation;

    Continuing inability to work

    (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)       in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008 2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)in all cases—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)in all cases—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.

    Note:    For work see subsection (5).

    Severe impairment

    (3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

    Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

    Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

    Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

    Active participation in a program of support

23. The POS Determination outlines the requirements for active participation as follows:

    7  Requirements for active participation

    (1)A person has actively participated in a program of support if the person satisfies the following requirements:

    (a)the person has:

    (i)complied with the requirements of the program of support; and

    (ii)participated in a program of support during the relevant period;

    (b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;

    (c)subsection (6) is satisfied in relation to the person and the program of support.

    Requirements for period of participation in program of support

    (2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.

    Note: A period during which a person does not participate in a program of support is not to be counted (see section 8).

    (3)This subsection is satisfied in relation to a person and a program of support if:

    (a)the duration of the program of support was less than 18 months; and

    (b)the person completed the entire program during the relevant period.

    (4)This subsection is satisfied in relation to a person and a program of support if:

    (a)the program of support was terminated before the end of the relevant period; and

    (b)the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.

    (5)This subsection is satisfied in relation to a person and a program of support if:

    (a)at the end of the relevant period, the person is participating in the program of support; and

    (b)the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.

    Information required to be provided to the Secretary

    Section 9 of the POS Determination addresses the matters to be taken into account relating to the program of support stating:

    9  Matters to be taken into account relating to the program of support

    In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must consider whether the program of support:

    (a)was provided by a designated provider; and

    (b)was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment; and

    (c)provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to prepare for, find or maintain work (including self‑employed work); and

    (d)includes at least one of the following activities:

    (i)job search;

    (ii)job preparation;

    (iii)education and training;

    (iv)work experience;

    (v)employment;

    (vi)return to work;

    (vii)vocational or occupational rehabilitation;

    (viii)injury management;

    (ix)an activity designed to assist the person to prepare for, find or maintain work.

24. As GFHF’s application for DSP was lodged in February 2016, the relevant period with respect to the POS Determination is 15 February 2013 to 15 February 2016, and the transitional provisions applied in this period. Section 11 of the POS Determination relates to the transitional provision and states:

    11Transitional provision

    Despite the repeal of the Social Security (Requirements and Guidelines — Active Participation for Disability Support Pension) Determination 2011 by this instrument, the definition of designated provider in that Determination continues, after that repeal, to apply for the purposes of this instrument in relation to a program of support that was:

    (a)not wholly or partly funded by the Commonwealth; and

    (b)started before the commencement of this Part.

    SUBMISSIONS

    Mr Carson on behalf of the applicant

1. Mr Carson submitted that the applicant was firmly of the view that the rehabilitation program she had undertaken since 2002, consisting of Pilates, physiotherapy, myotherapy, a pain management program, exercise physiology and attendance on a psychologist was the equivalent of the program of support. Mr Carson contended that the applicant was an honest person, her work was the major and most rewarding aspect of her life, and that she had been trying for some 15 years to resume full time employment.

2. Mr Carson contended that the JCA was unreliable and attracted no weight as the assessor had relied on a medical report dated 3 March 2016, and that report was not before the Tribunal.

3. Mr Carson further submitted that s 9(c) of the POS Determination requires the Secretary to consider whether a rehabilitation program authorised by WorkCover Victoria following a workplace injury was the equivalent of a POS.

4. Finally, Mr Carson contended that the transitional provisions of s 11 were such that WorkCover Victoria met the current definition of a designated provider. WorkCover had authorised TSIC to provide a rehabilitation program, which was intended to improve the applicant’s capacity to return to work, but the program was unsuccessful because of her impairments.

   Mr Lessing on behalf of the respondent

5. Mr Lessing agreed that the transitional provisions of s 11 of the POS Determination were attracted and that WorkCover Victoria was a designated provider in the years from 2014 to 2016.  

6. Mr Lessing submitted that the POS Determination is vocationally directed in order to develop skills to fit the incapacity. He argued that, on the other hand, the TSIC physical and mental rehabilitation was in no way vocational. This was supported by the JCA, the assessor having advised that with intervention GFHF could work 15 to 22 hours per week. The intervention recommended was vocational training, study and/or reskilling.

7. At the direction of the Tribunal, Mr Lessing made further enquiries in relation to the medical report of 3 March 2016 that was not before the Tribunal. The Tribunal was satisfied by the evidence produced that this was an error within the respondent’s office, the date of 3 March 2016 referring to an email of that date, which resubmitted the report of Professor Teddy dated 30 October 2013.  Professor Teddy’s report had been before the JCA.

8. In the course of communications relating to the above, Mr Carson raised an objection to the respondent in their submissions having relied on, and provided the tribunal with a copy of, the decision in Re Secretary, Department of Social Services and Danielle Konopka [2016] AATA 627. Mr Carson contended the applicant should have been informed of this reliance prior to the hearing. Mr Lessing submitted that the Secretary is not only entitled to but in fact obliged to assist the Tribunal, and it was usual practice to provide full copies of the case law cited. The Tribunal accepts and agrees with this submission.

   TRIBUNAL’S DELIBERATIONS AND DECISION

9. The Tribunal accepts the impairment rating of 25 points determined by the AAT Tier 1. The applicant also accepts this rating.  She also accepts that she does not have any severe injuries that attract a rating of 20 points in their own right.

10. Regrettably, the medical evidence provided to the Tribunal is only up to 2014. In his last report, the treating orthopaedic surgeon, Mr Brydon (29 January 2014) recorded that the x-rays of GFHF’s knees, in particular the left knee, were normal. He disagreed with this interpretation but did not elaborate. Earlier, on 8 August 2013 Mr Brydon advised that in his opinion GFHF would eventually require bilateral total knee replacement, but did not provide a timeframe. Mr Russell Miller, orthopaedic surgeon, was also of the opinion that total knee replacements would be required but predicted that would be in 10 to 15 years. Neither Mr Miller nor Mr Brydon addressed the question of GFHF’s work capacity.

11. The overall medical opinion is that GFHF cannot do physically-based duties such as those she performed while employed by Woolworths in the delicatessen and the bakery. As suggested by the JCA, the only work she might undertake is in a sedentary capacity.  The assessor recommended certain types of work.

12. There was no evidence before the Tribunal that GFHF had undertaken any retraining in a similar area, or training for a different form of more sedentary work.

13. Section 9 of the POS Determination has been considered by the Tribunal.  The Tribunal determines that GFHF satisfies subsection (a) but not (b) (c) and (d).

14. GFHF has been in rehabilitation since 2002. She ceased physiotherapy in August 2014 on advice of the exercise physiologist. She continues with massage, home exercise and attendance upon a psychologist; although the psychologist reports no improvement despite regular CBT. The regular massage that GFHF receives provides temporary relief from her pain and discomfort, but is not recommended by any orthopaedic surgeon. GFHF’s refusal to accept the recommended treatment in the form of medication may well be based on her 2002 experience, when she had a bleeding gastric ulcer attributed to the use of NSAID’s. Her belief that she is incapacitated for any form of work seems entrenched.

15. The AAT has enforced the requirements of POS Determination since its introduction (e.g. see Re Tey and Secretary, Department of Social Security [2013] AATA 753).

16. The Tribunal considers GFHF to be a witness of truth who has accepted most of the indicated medical treatment but refused medication based apparently on the adverse effects experienced in 2002. Her approach to treatment, the possible further joint deterioration and her future prognosis have probably been coloured by her past experiences. This is understandable but not necessarily valid. She does have proven allergic reactions to various allergens such as Penicillin and shellfish, but this is not a generalised reactivity according to the medical reports.

17. The Tribunal determines that no aspects of the rehabilitation program undertaken since 2002 have involved vocational or occupational rehabilitation.  The rehabilitation program has been directed purely at physical rehabilitation, which is only a part of any injury management. This is in line with the decision of Deputy President Bean of this Tribunal in Re Konopka, where the applicant’s engagement in a pain management program for 18 months was not a “program of support” of the kind contemplated by the Determination as there was no exploration of other forms of employment or clear evidence that it involved a concerted and consistent attempt to increase Ms Konopka’s work capacity through both the management of her condition and consideration of alternative forms of employment.   The Deputy President’s reasoning is equally applicable to the facts in this case.

18. In terms of the s 9 requirements, only subsection (a) is satisfied. Subsection (d)(vi) was attempted but failed as a result of GFHF sustaining further injury.

19. GFHF does not satisfy the requirements of s 94(2)(aa) having not undertaken a Program of Support. Therefore, the Tribunal affirms the decision under review.

I certify that the preceding 43 (forty‑three) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

[sgd]........................................................................

Associate

Dated: 28 March 2018

Date of hearing:	17 January 2018
Assisting the Applicant:	Mr Pat Carson
Solicitor for the Respondent:	Mr Joshua Lessing, Sparke Helmore Lawyers