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

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.
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.
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…

Details

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

CaseChat Overview and Summary

This matter concerned an appeal by GFHF against a decision of the Administrative Appeals Tribunal (AAT) Tier 1, which had affirmed the Secretary of the Department of Social Services' decision to cancel GFHF's Disability Support Pension (DSP). GFHF had sustained injuries to her lower back and knees, which led to her ceasing work in 2007. While initially granted a DSP, its payment was cancelled following a review. The core of GFHF's appeal was that her ongoing rehabilitation program at TSIC constituted participation in a program of support equivalent to the requirements of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination).

The legal issues before the Tribunal were whether GFHF had a continuing inability to work due to her impairments, and specifically, whether her participation in the rehabilitation program at TSIC satisfied the requirements of section 94(2)(aa) of the *Social Security Act 1991* (Cth) and the POS Determination. This required the Tribunal to consider whether the program was wholly or partly funded by the Commonwealth and whether GFHF had actively participated in it. The Tribunal also had to determine if GFHF's impairments were of themselves sufficient to prevent her from doing any work independently of a program of support within the next two years, and whether she was prevented from undertaking training activity or if such activity would be unlikely to enable her to do any work.

The Tribunal accepted the impairment rating of 25 points assigned by AAT Tier 1, acknowledging that GFHF did not have a severe impairment. It noted that the medical evidence, though not entirely up-to-date, indicated that GFHF could not perform physically demanding duties and might only be suited for sedentary work. Crucially, the Tribunal found that there was no evidence GFHF had undertaken retraining for sedentary work. While acknowledging GFHF's consistent attendance at rehabilitation, including physiotherapy, Pilates, pain management, and cognitive behavioural therapy, the Tribunal determined that this did not satisfy the specific requirements of the POS Determination, particularly in relation to active participation in a program of support that would lead to employment. The Tribunal concluded that GFHF satisfied the impairment criteria but not the active participation requirements under section 94(2)(aa) of the Act.

The Tribunal affirmed the decision of AAT Tier 1.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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.

Evidence

Evidence Before The Court

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 EVIDENCEMedical Evidence 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. 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. 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 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 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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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. 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). 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. 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).