Hodges-Fong and Secretary, Department of Social Services (Social services second review)

[2016] AATA 815

Hodges-Fong and Secretary, Department of Social Services (Social services second review) [2016] AATA 815 (17 October 2016)

Division	GENERAL DIVISION
File Number	2016/0307
Re	Tricia Hodges-Fong
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	17 October 2016
Place	Sydney

The decision under review is affirmed.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – application rejected by Centrelink –– whether impairment is fully diagnosed, treated and stabilised – impairment tables -– decision affirmed

LEGISLATION

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

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

REASONS FOR DECISION

Dr I Alexander, Member

17 October 2016

BACKGROUND

1. On the 4 June 2015 Ms Hodges-Fong, who is currently 64 years old, lodged a claim for disability support pension (DSP) on the basis that she suffered medical conditions which were having an impact on her ability to function.

2. The claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act). In particular, she did not satisfy s 94(1)(b) of the Act as her impairment was not 20 points or more under the Impairment Tables.

3. In a decision dated 2 January 2016, the Social Services & Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Ms Hodges-Fong had a total rating of 15 points under Impairment Tables and, therefore did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.

4. In these proceedings Ms Hodges-Fong seeks review of the decision of the SSCSD.

5. At the hearing Ms Hodges-Fong was self-represented and able to give oral evidence.

   ISSUES

6. In order to qualify for DSP Ms Hodges-Fong must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with subclause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999, that is, between 4 June 2015 and 3 September 2015 (the claim period).

7. Section 94(1) of the Act provides that a person is qualified for DSP 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)the person has a continuing inability to work as defined by the Act.

8. The Respondent concedes, and the Tribunal accepts, that Ms Hodges-Fong suffers medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of his claim for DSP.

9. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

10. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).

11. The introduction to each relevant Table requires that “there must be corroborating evidence of the person’s impairment” and that “self-report of symptoms alone is insufficient”.

12. Also, the introduction to Table 5 of the Impairment Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.

13. It is agreed that Ms Hodges-Fong suffers several medical conditions including an upper limb condition, a mental health condition, a spinal condition, a lower limb condition, hypertension and a condition involving her vision.

14. The Respondent contends that that during the claim period the functional impact of Ms Hodges-Fong’s medical conditions warranted a rating under the Impairment Tables of 0 points and, therefore, she did not satisfy section 94(1)(b) of the Act.

15. Alternatively, the Respondent contends that, during the claim period Ms Hodges-Fong did not have a “continuing inability to work” and, therefore, could not satisfy section 94(1)(c) of the Act.

16. It follows that the determinative issue in this matter is whether, during the claim period, Ms Hodges-Fong suffered an impairment of 20 points or more under the Impairment Tables and, if so, whether she had “a continuing inability to work”.

    UPPER LIMB CONDITION

17. In October 2009, Ms Hodges-Fong was diagnosed as suffering from invasive cancer of the left breast. Treatment included mastectomy with sentinel lymph node biopsy, chemotherapy and ongoing hormone therapy. Currently she continues on hormone therapy with Tamoxifen.

18. At the SSCSD hearing, Ms Hodges-Fong stated that she could not do many things that she was “accustomed to do with her left hand, such as lifting anything with any weight”.

    Medical Evidence

19. In a brief note dated 18 December 2011, Dr Zaki, GP, states that Ms Hodges-Fong had a left mastectomy in 2009 for breast cancer and “since then has been experiencing some persistent pain and difficulty using [her] left arm” but provides no other details.

20. In a letter dated 25 January 2012, Dr Zaki notes that Ms Hodges-Fong reported difficulty with cutting “hard food stuffs” with the left hand, opening cans, holding “relatively heavier” objects, being unable to raise her left arm above shoulder level without pain and difficulty with buttons and zippers located at the back of her neck.

21. Dr Zaki also notes that Ms Hodges-Fong is “able to engage in sedentary desk bound sort of work” and “is still able to perform some of her work as stated earlier”. 

22. In a letter dated 30 August 2012, A/Professor West, surgeon, states that “[b]ecause of the mastectomy and the surgery under her arms this has meant she now has limited capability with her arms and shoulder movements and as such she is having problems pushing the trolley and lifting heavy files” but provides no other details.

23. In a brief letter dated 30 May 2015, Dr Zaki notes that Ms Hodges-Fong has “been reporting some recurrent pain on the left hand and R [right] ankle” but provides no other details.

24. In a Centrelink Medical Report dated 11 June 2015, Dr Zaki notes “getting limited movement of (L) [left] upper limb” but provides no other details.

    Consideration

25. The evidence in respect of functional impact on Ms Hodges-Fong when performing activities that require using hands or arms, following her mastectomy, is somewhat problematic in that it relies primarily on her self- report of symptoms. 

26. The corroborative medical evidence can best be described as incomplete and, in my view, does not provide a satisfactory assessment of Ms Hodges-Fong’s impairment.

27. However, notwithstanding the limitations of the evidence and consideration of the descriptors in Impairment Table 2, I am satisfied that, during the claim period, Ms Hodges-Fong, did suffer permanent mild functional impairment when performing activities requiring the use of hands and arms, so a rating of 5 points can be applied.

    MENTAL HEALTH CONDITION

28. In the report of 11 June 2015, Dr Zaki lists “[d]epression & anxiety with late onset aggravation” as a medical condition with most impact. Current treatment is described as “[p]sych counselling ref. to oncology psychologist Liverpool Hospital” and future treatment is described as “[p]sychiatrist review, continue psychologic [sic] treatment”.

29. In a Centrelink Medical Certificate dated 26 June 2015, Dr Ismail, psychiatrist, notes a diagnosis of “Major Depressive Disorder” and describes treatment as “venlafaxine XR 75 mg., oncology psychologist (has appt)”.

30. In a Centrelink Medical Report dated 9 November 2015, Dr Ismail identifies “Major Depressive Disorder and anxiety” and describes current treatment as “Escitalopram 10 mg bd, psychological therapies”. Dr Ismail notes “erratic compliance” with recommended treatment.

31. In a letter dated 19 October 2015, Ms Przezdziecki, clinical psychologist, states that she saw Ms Hodges-Fong on 18 June 2015, and suggested she obtain assistance “to stabilize her mood with a psychiatric evaluation and an anti-depressant review”. Subsequent appointments occurred on 30 September 2015 and 20 October 2015.

32. On the 28 October 2010, Ms Przezdziecki contacted Ms Hodges-Fong by phone to inform her that a referral had been made to Dialectical Behaviour Program conducted by Liverpool Mental Health Services.

33. At the hearing Ms Hodges-Fong told the Tribunal that, at first, she was not willing to accept that she had a mental health condition and therefore was not compliant with recommended treatment. She conceded that she did not accept that she needed treatment until after her claim for DSP was rejected.

34. It is clear from the evidence that Ms Hodges-Fong does suffer from a mental health condition which was diagnosed during the claim period.

35. However, it is also clear from the medical evidence and Ms Hodges-Fong’s own evidence that the condition was not fully treated and fully stabilised during the claim period so that a rating under the Impairment Table 5 cannot be applied.

    SPINAL CONDITION

36. Ms Hodges-Fong claims that she has suffered lower back pain since suffering an injury at work in 1986.

37. In the report of 11 June 2015, Dr Zaki lists “[a]cute chronic low back pain” as a medical condition with significant impact and describes symptoms as “frequent acute on chronic low back pain episodes”.  Date of onset is noted as 9 March 2009, the same day on which her breast cancer was diagnosed.

38. Current treatment is described as “NSAID, PRN analgesics and physiotherapy” and future treatment as “would refer for possibly MRI scanning and orthopaedic specialist”.

39. In a letter dated 4 February 2016, Dr Giblin, orthopaedic surgeon, notes that Ms Hodges-Fong complained that she has suffered low back pain since 2006 and recommends radiological examination of the lumbar spine.

40. In a letter dated 15 February 2016, Dr Giblin states inter alia that:

    “x-ray of her lumbar spine showed discovertebral degenerative change of the L5/S1 level and MRI confirms a posterior bulging of the disc a L4/5 and some osteoarthritic changes of the facet joints at L5/S1…. Bone scan showed discovertebral degenerative arthritis at L5/S1 and the facet joints on the right at L3/4 and facet joints on the left at L3/4 and L4/5.”

41. Dr Giblin arranged bilateral facet blocks which were performed on 22 February 2016 and 2 March 2016.

42. Ms Hodges-Fong told the Tribunal that the injections provided significant relief of her symptoms so that she was able to increase her physical activities. She said that the pain was relieved for four to five months but recently had started to recur.

43. In my view, the evidence before the Tribunal demonstrates that Ms Hodges-Fong’s spinal condition was not fully diagnosed or treated until February 2016, five months after the end of the claim period.

44. Furthermore, the evidence suggests that her symptoms are episodic and that further treatment may improve her functional capacity.

45. It follows that during the claim period, Ms Hodges-Fong spinal condition was not permanent for the purposes of the Impairment Determination so that a rating under Impairment Table 4 cannot be applied.

    LOWER LIMB CODITION

46. In the letter of 30 May 2015, Dr Zaki states that Ms Hodges-Fong reported recurrent pain in the right ankle but provided no other details.

47. In the report of 11 June 2015 Dr Zaki noted chronic pain in the right foot following removal of “lump on the ant. aspect of ankle”.

48. At the SSCSD hearing, Ms Hodges-Fong told that  Tribunal that she had chronic pain in the right foot which she attributed to two work injuries, surgical removal of a cyst from the ankle and injury to one of her toes.

49. In my view, there is insufficient corroborative evidence before the Tribunal to support any reasonable conclusion as to the cause of Ms Hodges-Fong’s self-reported chronic pain and, therefore, I am satisfied that a rating under the impairment Tables cannot be applied.

    VISION

50. Ms Hodges-Fong claims that she suffers significant visual impairment which includes intermittent blurring of vision and frequent “floaters”.

51. In a letter dated 12 October 2015, Dr Pandya, ophthalmologist, states inter alia the following:

    “She does not have any significant eye history and uses glasses for mild to moderate myopia. Her main concerns today included long standing floaters and occasional blurry vision which she believes is due to cataract… On examination visual acuity was 6/7.5 in both eyes. Anterior segment examination revealed very mild cortical and nuclear cataract. Examination of the fundus did not reveal any significant abnormality in particular there were no retinal tears or breaks. There was certainly some vitreous floaters though these do not appear to be clinically significant. OCT scan did not reveal any significant abnormality…I have tried to reassure Tricia that her eyes are reasonably healthy and that her cataracts are only very mild and do not require intervention at this stage…”

52. The medical evidence clearly does not support Ms Hodges-Fong’s claim that she suffers significant functional impact on activities involving visual function, therefore, a rating of 0 points under Impairment Table is appropriate.

    HYPERTENSION

53. Ms Hodges-Fong told the Tribunal that she has suffered from hypertension for many years and takes regular oral medication.

54. There is no corroborating medical evidence before the Tribunal to support a conclusion that, during the claim period, Ms Hodges-Fong’s condition of hypertension had any functional impact, therefore, a rating of 0 points under the Impairment Tables is appropriate.

    DECISION

55. For reasons set out above the Tribunal is satisfied that, during the claim period, Ms Hodges-Fong did not have an impairment of 20 points or more under the Impairment Tables so that she did not satisfy section 94(1)(b) of the Act and did not qualify for DSP. It is therefore unnecessary to consider whether Ms Hodges-Fong has a continuing inability to work.

56. The decision under review is affirmed.

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated 17 October 2016

Date of hearing	6 October 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services