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

[2018] AATA 1842

Hutchinson and Secretary, Department of Social Services (Social services second review) [2018] AATA 1842 (25 June 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3721

Re:BEVERLEY HUTCHINSON

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:R CAMERON, SENIOR MEMBER

Date:25 June 2018

Place:Melbourne

The Tribunal affirms the decision under review.

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

Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – Impairment Tables – whether condition fully treated and stabilised – decision affirmed

Legislation

Social Security Act 1991

Secondary Materials

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

REASONS FOR DECISION

R CAMERON SENIOR MEMBER

25 June 2018

Introduction

1. This is an application for a review of a decision made by the Administrative Appeals Tribunal - Social Services and Child Support Division (“AAT 1”) on 23 May 2017 to reject the Applicant’s claim for the Disability Support Pension (“DSP”).

2. At the outset the Tribunal wishes to express its sympathies for the Applicant who presented in the witness box as a woman of credibility for whom life has presented a significant number of challenges. However, the Tribunal is bound to carry out its functions according to law notwithstanding what sympathies it may otherwise have for the Applicant.

   The issues to be decided

3. The issue to be decided is whether the Applicant was qualified to receive DSP during a 13-week qualifying period commencing on 17 June 2016[1] when she lodged a claim for the DSP (“Qualification period”).

   [1] The 13-week qualification period ran from 17 June 2016 (the date that the Applicant lodged her claim for the DSP) to 16 September 2016 inclusive.

4. To determine whether she is entitled to the DSP it is necessary for the Tribunal to apply section 94 of the Social Security Act 1991 (“the Act”). To qualify the Tribunal has to be satisfied that the Applicant had:

   (a)A physical, intellectual or psychiatric impairment; and

   (b)Her impairment attracted a rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”); and

   (c)A continuing inability to work.

5. Under section 6(3)(a) of the Impairment Tables, an impairment rating can only be assigned to a physical, intellectual or psychiatric impairment if the condition causing such impairment is permanent.

6. Section 6(4) of the Impairment Tables requires that for the purposes of determining whether a condition is permanent under section 6(3)(a), the condition must be fully diagnosed, fully treated and fully stabilised. Without these three integers being present with respect to a condition no impairment rating can be assigned to it.

7. The Applicant gave evidence in the witness box. She was a credible witness who as noted above has had a series of confronting challenges in life, in terms of several medical conditions over some years, sexual abuse from her uncle from the age of nine and financial difficulties. Her dignity in the witness box recounting some of these events was impressive.

   The medical conditions suffered by the Applicant

   Osteoarthritis of the knee

8. The Respondent conceded that the Applicant’s knee condition was fully diagnosed but contends that it was not treated and stabilised as the reasonable treatment for such condition was knee replacement surgery. The Applicant gave evidence that she had both knees operated on separately; the right knee in August last year and the left knee in January of this year.

9. At the time of applying for the DSP on 17 June 2016 the Applicant furnished to the Respondent a Medical Certificate dated 8 June 2016, prepared by her general practitioner Dr Dickman (who has been her treating general practitioner since June 1980). It identified the osteoarthritis of the knees as the Applicant’s primary condition, which was permanent and that planned treatment for it was a total knee replacement. Dr Dickman also expressed this view in a Patient Health Summary of 13 September 2016[2] where he opined “In the near future she will need knee replacements.” In a Job Capacity Assessment Report prepared by a Registered Nurse and Accredited Exercise Physiologist for the Respondent on 22 August 2016[3], it was considered that the medical evidence indicated the Applicant would require knee replacements in the future. The matter was expressed to be solely one of timing[4]. As it turns out the planned treatment did eventuate.

   [2] Document T 11 of the T documents at page 44.

   [3] Document T 9 of the T documents.

   [4] The documentary evidence (Document T 8 of the T documents are referred to in particular the entries made by the Applicant in response to several of the questions on page 31) and indeed the oral evidence given by the Applicant in the witness box was that she was placed on a public hospital waiting list for such surgery which delay as is well-known can at times be lengthy. Indeed in the Job Capacity Assessment Report of 22 August 2016 it forecast that such surgery for a public patient would probably be two years or more away.

10. A letter from the “Elective Surgery Waiting List Office” at the Frankston Hospital dated 20 January 2017[5] addressed to the Applicant advised that she had been placed on the Peninsula Health elective surgery waiting list with the Orthopaedic Surgery unit to undergo a total right knee replacement. The letter also indicated that she had been examined by a specialist and listed as “Category 2-Semi Urgent”. The message being conveyed by this letter is obviously that knee replacement surgery was imminent.

    [5] Document T 15 of the T documents.

11. A “Patient Health Summary” prepared by Dr Dickman on 12 February 2017[6] recorded, amongst other things, that there had been “letters from her orthopaedic surgeon outlining surgery on both knees in the next few months.” Unfortunately, the letters concerned are not in evidence before the Tribunal. However, they are indicative of the fact that further treatment by way of surgery was foreshadowed sometime in the near future. As observed above, of course this event did come to pass.

    [6] Document T 17 of the T documents.

12. Given the preponderance of evidence, which shows that during the qualification period reasonable treatment of the condition was a total replacement of both knees, the Tribunal finds that the condition was not fully treated and stabilised as required by section 6(4) of the Impairment Tables.

13. However, if one does consider a rating under the Impairment Tables to be ascribed to the condition of osteoarthritis of the knee, the Tribunal agrees with the contentions of the Respondent that no more than 10 points under Table 3 of the Impairment Tables “Lower Limb Function” can be assigned.

14. There are several reasons for this conclusion. In her claim for the DSP the Applicant stated that she could not stand for more than half an hour and that the painkillers she was taking at the time made her groggy and could lead to falls.[7] In reporting to the authors of the Job Capacity Assessment Report in August 2016 she stated that she could not walk far, occasionally her left knee buckled, sometimes resulted in falls. The Applicant also stated that walking had become incrementally difficult over the last three years, that she could only climb a few steps at a time and could not use stairs if there was no handrail.[8]

    [7] See Document T 8 of the T documents at page 32.

    [8] See Document T 9 of the T documents at page 36.

15. In response to some probing questions from Mr Daly for the Respondent she stated that during the qualification period she could walk with a walker to the Langwarrin shops. She said that she would be in pain and she used the walker a lot back then because she was having falls. She stated that when making her way to the shopping centre with her walker she was able to walk around without anyone else helping her. Dr Dickman had given her a letter to enable her to obtain a disabled parking permit so that she could park close to the entrance of such shopping centre. Additionally, she stated that if she felt her knees were likely to give way she would sit down for a while to enable them to recover.

16. The Respondent contends that when one examines the descriptors attracting a 10 point rating in Table 3 - Lower Limb Function, they match the capacity of the Applicant during the qualification period. The Tribunal agrees with this contention. If the descriptors for a 20 point rating, being a severe functional impact on activities using lower limbs, are examined it is apparent that none of those descriptors apply to the activities that the Applicant was able to undertake during the qualification period. She was able to walk around the shopping centre without assistance. (Assistance meaning assistance from another person, not from aids, equipment or assistive technology[9].) She readily conceded she was able to walk from the car park into a shopping centre without assistance. She was able to carry out the other activities without assistance from another person. Therefore a severe or 20 point rating could not be assigned to her condition of osteoarthritis of the knee.

    [9] The Tribunal was referred by the Respondent to the decision of Re Summers and Secretary, Department of Social Services [2014] AATA 165 where the Tribunal accepted that where the term "assistance" is used in the Impairment Tables this means assistance by another person rather than the use of an aid such as a walking frame or walking stick. In the decision it was stated as follows:

    It would be superfluous to mention “aids, equipment or assistive technology" in the descriptors, because the rule in [paragraph] 9 of the Impairment Tables Determination requires them to be taken into account.

    The Tribunal accepts this analysis as a true and proper construction of the applicable parts of the Impairment Tables.

    Asthma

17. The Respondent has accepted that the Applicant’s condition of asthma is fully diagnosed. Once again the Respondent does not accept that the condition is fully treated and stabilised.[10]

    [10] Paragraph 4.31 of the Respondent's Statement of Issues, Facts and Contentions is referred to.

18. The Medical Certificate furnished by Dr Dickman on 8 June 2016 referred to the symptoms of the asthma suffered by the Applicant as being wheezing. With respect to planned treatment it was described in terms of “as necessary”.[11]

    [11] Document T 7 of the T documents at page 24.

19. The starting point from the perspective of the Respondent is that such condition has not been medically reviewed for some years. Once again in the Job Capacity Assessment Report of 22 August 2016, the Applicant advised its authors that since she had the flu some months previously she had continued to experience increased breathlessness with exertion and increased wheezing. The authors of that report concluded that her prognosis based upon such instructions from the Applicant appeared to indicate a worsening or exacerbation of her existing condition. They noted that she had not had her medication reviewed for some years and on these grounds reached the conclusion that the condition was not fully treated and stabilised.

20. Indeed, Dr Dickman in a subsequent medical report dated 20 December 2016[12], outside the qualification period, gave a slightly different analysis of the condition with respect to asthma and noted that in addition to the wheezing previously recorded, the Applicant could not walk more than 50 metres. The treatment regime proposed in the future referred to “Bronchodilators” whereas the previous report simply referred to treatment “as necessary”. Overall, this change in assessment is indicative of the fact that the condition had not been fully treated and stabilised in the sense required.[13]

    [12] Document T 12 of the T documents.

    [13] Similar opinions were expressed later in the material in a subsequent opinion from Dr Dickman on 23 March 2017 (T 18 of the T documents) and 8 September 2017 (T 20 of the T documents).

21. The Applicant informed the authors of the Job Capacity Assessment Report on 22 August 2016 that previously the only time she experienced difficulties was when she was unwell or with exceptional exertion. In her evidence to the Tribunal in this application she stated she couldn’t recall when she last had her asthma treated before mid-2016. (Roughly around the time of the qualification period). She stated that she had used asthma pumps. She had been subsequently referred to a lung specialist and had consulted him as recently as a week prior to this hearing. The first time she consulted a lung specialist was last year and she sees him approximately every six months. She recalled his name was David Langdon. She also gave important evidence that last year he advised that her lung capacity was down to 80%. He expressed an opinion that he would like her to do more exercise but she is finding it very difficult to do so due to the pain it causes. Additionally, she gave evidence that she had the flu in early 2016, which made her lungs worse and caused a change of medication. She had further observed around this time a decline in her breathing. This explanation in the witness box is consistent with the instruction she gave to the authors of the Job Capacity Assessment Report of 22 August 2016. She also stated that she had pneumonia and gastroenteritis in approximately early 2016 which had caused some further difficulty concerning this condition.

22. Given the preponderance of this evidence, including the evidence she gave from the witness box particularly in cross-examination, the Tribunal can only conclude that the asthma suffered by the Applicant was not fully treated and stabilised. It seems more probable than not that this is a condition which can be further treated and as a result of such treatment, is likely to improve. The fact that she has consulted the one specialist,

    
    

    Dr Langdon, as referred to earlier in these reasons is indicative of this conclusion. Given that she is seeing him approximately twice a year there would appear to be further management and treatment options open to her which have not as yet been exhausted. Dr Langdon’s recommendation for more exercise at the very least provides some further corroboration for this conclusion.

23. If a rating is to be applied under the Impairment Tables it would be under Table 1 -Functions requiring Physical Exertion and Stamina. When one examines the rating for mild functional impact and the descriptors that attract 5 points, they conform most readily with the symptoms identified by the Applicant both in her evidence and the documentary material before the Tribunal. It will be recalled that the evidence available is that during the qualification period she continued to experience increased breathlessness with exertion and increased wheezing. This evidence largely conforms with the descriptors contained in Clause (1) of Table 1.

    Depression

24. This condition is somewhat problematic in that in the medical certificate provided by

    
    

    Dr Dickman on 8 June 2016, which was lodged with the application for the DSP by the Applicant, depression was identified but not included as a primary or secondary condition. (It was also referred to in her application for the DSP, in which she stated she was taking medication for depression and continuing to see her doctor). The Applicant acknowledged that she was taking medication for the condition[14]. She gave this information to the authors of the Job Capacity Assessment Report but there was little other evidence.

    [14] Dr Dickman in his Medical Certificate of 8 June 2016 did refer to the Applicant suffering from "depression" when asked to give details of any other medical conditions which impact on the patient's capacity to work or study. He also stated that for the depression she was being treated with Zoloft. However, no other details are furnished.

25. In her evidence to the Tribunal the Applicant conceded that she saw a psychiatrist for the first time in December last year. The psychiatrist was a person whose name she was unable to recall but apparently practices from the same surgery or medical clinic as

    
    

    Dr Dickman. Presumably, Dr Dickman referred the Applicant to that psychiatrist because he had reached a rationally concluded professional opinion that there were further benefits potentially to be obtained by her if such a psychiatrist were consulted. The Applicant stated that the psychiatrist wished to increase her medication to 200 mg, which the Applicant was not prepared to accept. She advised the Tribunal in evidence that she found counselling far more effective. She conceded that she had not seen a psychiatrist previously and did not know that she had to go to one or that it might improve the prospects of her depression being fully diagnosed, treated and stabilised. The fact that the Applicant did not see fit to follow the advice of a psychiatrist being a medical specialist appropriate to treat such a condition is problematic for the Applicant in the context of this proceeding. The reason is that it is proof that a further treatment option was open to her which has not been undertaken. This is indicative of the condition not being fully treated and stabilised.

26. The Applicant’s counsellor in a report made on 10 April 2017 considered her condition was post-traumatic stress disorder.[15]

    [15] Document T 19 of the T documents.

27. In considering this condition and whether it was fully diagnosed, treated and stabilised the preponderance of the evidence indicates that it was not fully treated and stabilised. The Applicant’s own evidence that she had received psychiatric advice to increase the dosage of medication to 200 mg corroborates this conclusion. The conclusion of the counsellor that there is post-traumatic stress disorder shows that there must be some doubt as to precisely what the treatment and stabilisation options are. Additionally, the Applicant’s own evidence that she finds counselling beneficial indicates that there are a range of treatment options which have not been exhausted.

    Other conditions

28. The other conditions identified in the material are numbness in hands, generalised osteoarthritis, backache, stroke, diabetes, thyroid condition and carpal tunnel syndrome.

29. There is limited evidence concerning these conditions during the qualification period. Indeed in Dr Dickman’s Medical Certificate of 8 June 2016 such conditions do not appear. Diabetes is referred to in the Applicant’s application for the DSP. Nothing is said about whether it is fully treated and stabilised. It does not show up in the Job Capacity Assessment Report as being a condition from which she suffers. It is referred to in the Patient Health Summary of Dr Dickman on 13 September 2016 but he offers no opinion on her prognosis or treatment.

30. In Dr Dickman’s Medical Certificate of 20 December 2016 he refers to carpal tunnel affecting hands. He then recommends surgery. This can only lead to a conclusion that the condition of carpal tunnel syndrome has not been fully treated and stabilised.

31. Therefore, considering the preponderance of the evidence available to the Tribunal concerning these other conditions, the Tribunal has to conclude that they have not been fully treated and stabilised. Therefore, in the circumstances they cannot be assigned impairment ratings under the Impairment Tables.

    Section 94(1)(c) of the Act - Continuing inability to work

32. As the Tribunal has found that the Applicant does not have a rating of at least 20 points under the Impairment Tables for the conditions from which she suffers, it is not necessary to determine whether she has an inability to perform work within the meaning of section 94(1)(c)(i) of the Act.[16]

    [16] The Respondent's contentions at paragraph 4.43 of its Statement of Issues, Facts and Contentions are referred to and accepted by the Tribunal.

    Conclusion

1. By reason of the Tribunal finding that during the 13-week qualifying period from 17 June 2016 to 16 September 2016 the Applicant’s impairments could not be given an impairment rating of at least 20 points under the Impairment Tables, she is not entitled to the DSP and the decision of AAT1 made on 23 May 2017 is affirmed.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Cameron

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

Associate

Dated: 25 June 2018

Date(s) of hearing:	25 May 2018
Applicant:	In person
Solicitors for the Respondent:	Matthew Daly