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

[2021] AATA 2454

Gombos and Secretary, Department of Social Services (Social services second review) [2021] AATA 2454 (23 July 2021)

Division:GENERAL DIVISION

File Number(s):      2020/5954

Re:Irene Gombos

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:23 July 2021

Place:Sydney

The decision under review is affirmed.

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

Chris Puplick AM, Senior Member

CATCHWORDS

SOCIAL SECURITY – entitlement to disability support pension – whether conditions fully treated and stabilised during the qualification period – whether impairment was of 20 points or more under s 94(1)(b) – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94(1)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 s 6

REASONS FOR DECISION

Chris Puplick AM, Senior Member

23 July 2021

1. Mrs Irene Gombos (the Applicant) is seeking a review of a decision made by the Social Services and Child Support Division of this Tribunal (AAT1) on 24 August 2020, which affirmed a decision of the Secretary, Department of Social Services (the Respondent), made on 16 July 2019, to reject the Applicant’s claim for payment of the Disability Support Pension (DSP) which was lodged on 17 May 2019.

2. The basis of the rejection decision is that while it is conceded that the Applicant does suffer from a degree of impairment, the nature and degree of that impairment is insufficient to meet the threshold tests set out in the Social Security Act 1991 (Cth) (the Act) to qualify for the DSP.

3. The matter was heard in this Tribunal on 15 July 2021 using the Microsoft Teams platform in line with the Tribunal’s COVID-19 protocols.

   THE DISABILITY SUPPORT PENSION SCHEME

4. In order to qualify for DSP, an Applicant must fulfil certain criteria which are set out in section 94 of the Act. Subsection 94(1) has three distinct limbs:

   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;

5. In essence, these requirements or criteria amount to this:

   ·the person has a physical, intellectual or psychiatric condition;

   ·the person’s medical condition(s) rates 20 points or more on the Impairment Tables (which are specific criteria, set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) made under section 26 of the Act, established to assess the level of impairment). Points may be accumulated for a variety or number of conditions or, in certain circumstances, awarded directly for one condition of particular severity;

   ·the person has a continuing inability to work or the Secretary is satisfied that the person is participating in a program known as the supported wage system;

   ·the person has turned 16; and

   ·the person is an eligible citizen or qualifying resident.

6. Failure to meet any one of these requirements is fatal to an application claim for DSP and the Tribunal has neither the power nor the authority to disregard any such failure.

7. In assessing the points to assign to impairments, the condition (however defined) giving rise to the impairment must be:

   ·fully diagnosed and documented;

   ·fully treated; and

   ·fully stabilised.

8. These important terms are defined in the Impairment Tables[1] as follows:

   [1] Impairment Tables at s 6.

   ...

   Impairment ratings

   (3) An impairment rating can only be assigned to an impairment if:

   (a) the person’s condition causing that impairment is permanent; and

   (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Permanency of conditions

   (4) For the purposes of paragraph 6(3)(a) a condition is permanent if:

   (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b) the condition has been fully treated; and

   (c) the condition has been fully stabilised; and

   (d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Fully diagnosed and fully treated

   (5) 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.

   Fully stabilised

   (6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

   (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.

9. Each of these criteria must be met before any points on the Impairment Tables can be considered or awarded.

10. A ‘continuing inability to work‘ is defined in subsection 94(2) of the Act. In effect, it means that the impairment prevents the person from:

    (a) … 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.

11. It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.

12. Finally, the DSP scheme has a temporal element to it in that any claim must be assessed with reference to a specific time framework. The Social Security (Administration) Act 1999 (Cth) provides that a claim must be assessed by taking as a starting point, the day upon which the DSP application was made, and considering the Applicant’s eligibility from that date forward within a 13-week period thereafter.[2] This is referred to as the ‘qualification period’. Only evidence which relates to the Applicant’s condition during this period can be taken into account by the Tribunal and any evidence which post-dates the period must, to be accepted, relate specifically to that period.[3]

    [2] Schedule 2 subclause 4(1).

    [3] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].

13. In this instance, the ‘qualification period’ commences on the day on which the Applicant lodged their application, 17 May 2019, and concludes on 16 August 2019.

    APPLICANT’S ACCIDENT-RELATED IMPAIRMENTS

14. The Applicant suffered serious injuries in a traumatic motor vehicle accident in October 1987, which left her with major injuries to her legs and face.[4] The immediate presentations of impairments resulting from this accident were:

    ·left femoral fracture (thigh bone);

    ·right talar fracture (ankle injury); and

    ·nasal fracture.

    [4] Section 37 Documents (‘T Documents’) at 63.

    Left femoral fracture (thigh bone) and right talar fracture (ankle injury)

15. In relation to these two impairments, the Secretary contends that, while they have been diagnosed, they cannot be regarded as being fully stabilised and treated. There is somewhat conflicting evidence before the Tribunal as to whether  the Applicant sought any form of specialist assessment or treatment of these conditions during the ‘qualification period’ and what evidence there is tends to show that there has been a deterioration in these conditions over time. There is evidence of some sort of referral to undergo knee reconstruction just prior to the qualification period and then reference to a ‘waiting list’ which could imply that treatment was either planned or continuing through the qualification period.[5] This of course would reinforce a finding that the condition was not relevantly treated and stabilised. The Applicant also told the Tribunal that she had been advised as far back as 1987 that these conditions would deteriorate as she aged and that this was to be expected.

    [5] T Documents at 123.

16. The Applicant has had some surgery on one knee,[6] however, in a report dated 30 November 2020, Dr Mulligan (an orthopaedic surgeon) opines, ‘Given her age she would be very young for a total knee replacement so in the first instance our preference is not to offer her an arthroplasty at this stage.’[7]

    [6] Ibid at 68.

    [7] Attachment D of the Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’).

17. The Applicant has been advised to undertake physiotherapy to address these conditions[8] and, in consultation with her General Practitioner, she has been using an exercise bike and strengthening her walking and stair-climbing abilities. A report by Physiotherapist Tom Wong (dated 21 February 1992) reported that, ‘Miss Gombos had a course of treatment with pretty good improvement,’[9] but there is no evidence of any sustained course of such treatment beyond that point.

    [8] T Documents at 91.

    [9] Ibid at 77.

18. Given these activities and the assessment by Dr Mulligan, these impairments cannot be taken to be fully stabilised and treated as there are prospects that, with appropriate interventions, these conditions admit of at least some degree of improvement. As this is the case, while the Applicant’s conditions have been full diagnosed, it cannot be found that during the ‘qualification period’ the Applicant’s conditions were fully stabilised and treated as required by the legislation.

    Nasal fracture

19. The Applicant sought some immediate treatment for this condition which involved septoplasty surgery and injections of turbinence carried out on 29 March 1989.[10] In 1992, an Ear, Nose and Throat surgeon recommended further septal surgery, albeit at a cost of some $1,500.[11]

    [10] Ibid at 66.

    [11] Ibid at 78.

20. This again must lead to a similar conclusion as the other related injuries that this condition, while fully diagnosed, is not fully treated and stabilised as there are options available which may lead to an improvement of the condition. The Tribunal understands that the Applicant may well be deterred by the prospective costs of such interventions but there is no evidence that she has sought or received any specific treatment for this condition since the early 1990s.

21. The Tribunal must therefore conclude that, during the ‘qualification period’, the three identified impairments resulting from the 1987 accident were fully diagnosed, but they were not fully stabilised and treated. As a result, they cannot be assessed against the Impairment Tables in relation to sustaining a claim for the DSP.

    APPLICANT’S NON-ACCIDENT RELATED IMPAIRMENTS[12]

    [12] Following a request from Centrelink the Applicant advised that she had submitted a considerable amount of new material, in terms of medical reports, for consideration. The Tribunal is greatly assisted by these reports which have been subject to careful analysis in the RSFIC at [41]-[57].

    Osteoarthritis

22. Separately from the accident-related impairments, the Applicant presents with severe osteoarthritis. The Secretary concedes that this condition is fully diagnosed, stabilised and treated.[13] As such, it may be assessed against the relevant Impairment Tables, number 3 (Lower Limb Function) and number 1 (Functions requiring Physical Exertion and Stamina).

    [13]RSFIC at [11(a)].

    Table 3 – Lower Limb Function

23. The Applicant was questioned about the degree of her mobility, both at the time of the ‘qualification period’ and currently. She agreed that she had been able to walk short distances, that she needed help with domestic chores, was able to stand without difficulty (although not for long periods) and was able to drive herself short distances. She did not use public transport. She has recently started to use a walking stick and manages quite well with it and does not need or use a wheelchair or walking frame. A consideration of the criteria set out in Impairment Table 3 (below) indicates that an impairment rating of 10  points should be assigned for the Applicant’s relevant level of impairment as it was manifest during the ‘qualification period’. This is the same assessment as was arrived at by the Job Capacity Assessor in January 2020.[14]

    [14] T Documents at 140.

10

There is a moderate functional impact on activities using lower limbs.

(1)       At least one of the following applies:

(a)       the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)       the person is unable to use stairs or steps without assistance;            or

(c)       the person is unable to stand for more than 5 minutes; and

(2)       The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)       This impairment rating level includes a person who can:

(a)       move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)       move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note:   The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

20

There is a severe functional impact on activities using lower limbs.

(1)       The person:

(a)       is unable to do any of the following:

(i)        walk around a shopping centre or supermarket without assistance;

(ii)       walk from the carpark into a shopping centre or supermarket without assistance;

(iii)      stand up from a sitting position without assistance; and

(b)       requires assistance to use public transport.

(2)       This impairment rating level includes a person who requires assistance to:

(a)       move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

(b)       move around using walking aids (e.g. a quad stick, crutches or walking frame) i.e. the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

Table 1 - Functions requiring Physical Exertion and Stamina

1. Turning to Table 1, the criteria set out for achieving five (as distinct from zero) points is set out below. While the Applicant said that she currently experiences some issues with matters such as climbing stairs or doing the washing and dishwashing, it appears that these conditions have been of more recent manifestation as her general condition has deteriorated but may have been apparent during the ‘qualification period’. Giving the benefit of the doubt, the Tribunal would assign a rating of five points on this Table.

5

There is a mild functional impact on activities requiring physical exertion or stamina.

(1)       The person:

(a)       experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

(i)        walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

(ii)       performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

(b)       is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

Back pain (musculoskeletal pain)

1. The Job Capacity Assessor noted that the Applicant reported low back pain resulting from a leg length discrepancy.[15] The Applicant told the Tribunal that following her car accident there was a significant prospect that she would have to have one of her legs amputated but the surgeons managed to save the limb, albeit the surgery resulting in its shortening.

   [15] Ibid at 138.

2. The JCA reports:

   Reference to a diagnosis for back pain is first noted in the medical evidence on a CT scan dated 23/08/2019, and then a medical certificate dated 10/12/2019. These documents are outside the date of claim (17/05/19 plus 13 weeks to 15/08/2019 [sic]), and therefore not relevant to the assessment, and cannot be used to verify the condition.[16]

   [16] Idem.

3. The JCA is correct on this point, and while there is no doubt that the Applicant would have been suffering from back pain associated with unevenness of her legs, the lack of clear diagnostic evidence of that back pain during the ‘qualification period’, and any evidence about its treatment/management during that period, precludes it from being considered against any of the Impairment Tables.

   DISCUSSION

4. The Tribunal is satisfied in relation to those impairments arising directly from the Applicant’s car accident that while they were each fully diagnosed, they were not fully treated and stabilised during the ‘qualification period’. In some instances, they were not treated at all, and effective treatment began only after the ‘qualification period’. In other cases, there was evidence that some treatment was being successful or that some was advised but not, at that time, acted upon.

5. In relation to the Applicant’s impairment of osteoarthritis, a non-accident related impairment, the Tribunal is satisfied that it rates at a maximum a total of 15 points on combined Impairment Tables 1 and 3.

6. The Applicant’s non-accident related condition of back pain, while real, was not fully diagnosed, treated and stabilised during the ‘qualification period’.

7. These considerations result in an overall impairment rating of 15 points, which is below the minimum threshold of 20 points required for awarding of the DSP.

8. In any event, although it has not been necessary to consider the third limb of DSP requirements (the continuing inability to work test), the Tribunal notes the Secretary’s advice that the Applicant, during the relevant period, had not participated in any recognised Program of Support as required.[17]

   [17] RSFIC at [63]-[78].

   CONCLUSION

9. The Applicant is not qualified for the DSP on the basis of the analysis above. Only some of her conditions were fully diagnosed, treated and stabilised during the ‘qualification period’ and they rate only a maximum of 15 points on the Impairment Tables. The other conditions discussed were either not fully diagnosed, treated and stabilised, or where they were fully diagnosed, they were not fully treated and stabilised during the ‘qualification period’.

1. The Tribunal, however, recognises that since August 2019 there appears to have been a noticeable deterioration in the Applicant’s state of physical health and wellbeing. The Tribunal was impressed with the directness and openness with which the Applicant presented her submission on these matters.

2. If the case is as the Applicant now states, then she is in no way precluded from making a further application for the DSP which would be assessed as at the time of that application. The Tribunal cannot speculate as to what the outcome of any such new application might be and any decision about making it remains entirely in the hands of the Applicant.

   DECISION

3. The decision under review is affirmed.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 23 July 2021

Date(s) of hearing:	15 July 2021
Applicant:	In person
Solicitors for the Respondent:	Ms L Boyd, Hunt & Hunt Lawyers