Incorvaia and Secretary, Department of Social Services (Social services second review) - [2018] AATA 1830

Incorvaia and Secretary, Department of Social Services (Social services second review) [2018] AATA 1830 (19 June 2018)
Division:GENERAL DIVISION
File Number(s): 2016/5919
Re:Laura Incorvaia
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr Andrew Cameron, Member
Date:19 June 2018
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]........................................................................
Mr Andrew Cameron, Member
Catchwords
SOCIAL SECURITY – Disability Support Pension – whether conditions fully diagnosed, treated and stabilized – continuing inability to work - program of support requirements – decision affirmed
Legislation
Social Security (Administration) Act 1999 (Cth) Sch 2, Clause 4
Social Security Act 1991 (Cth)
Cases
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Re Karaman and Secretary, Department of Social Services [2016] AATA 597
Secondary Materials
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
REASONS FOR DECISION
Mr Andrew Cameron, Member
19 June 2018

Ms Laura Incorvaia seeks a review of the decision of the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal made on 5 October 2016. The SSCSD affirmed the decision of an Authorised Review Officer (ARO) made on 20 July 2016 to reject her claim for the disability support pension (DSP).
Ms Incorvaia was born on 10 August 1970 and lived in Argentina for a significant proportion of her life. She was born in Argentina, moved to Australia at the age of 16 and then returned to Argentina at the age of 24 where she met her husband and had two children (who, as at the date of hearing, were aged 20 and 16 years respectively).
She settled in Argentina and focused on family life. She separated from her husband in 2011 and then returned to Australia. During the course of the hearing, she gave evidence that she had a number of traumatic experiences in Argentina including on a number of occasions where a gun was put to her head.
By way of procedural background:
(a)Ms Incorvaia advised of her intention to make a claim for the DSP with the Department of Human Services (Department) on 22 December 2015;
(b)the Department rejected Ms Incorvaia’s application for the DSP on 18 May 2016;
(c)the ARO reviewed and affirmed the decision to reject Ms Incorvaia’s DSP claim on 20 July 2016;
(d)Ms Incorvaia sought review by the SSCSD and, on 5 October 2016, it reviewed and affirmed the decision to reject her claim for the DSP; and
(e)on 2 November 2016, Ms Incorvaia lodged an application for second tier review by this Tribunal.
QUALIFICATION FOR DSP
Broadly, this Tribunal must determine whether Ms Incorvaia qualified for the DSP as at the deemed date of her claim, being 22 December 2015, or within 13 weeks of that date: clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth).
Section 94 of the Social Security Act 1991 (Cth) (Act) sets out the qualification requirements for the DSP. Section 94 of the Act provides, among other things, that:
(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
…
(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.
The Tribunal can only consider an applicant’s qualification for DSP within that qualification period: see Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] as affirmed in Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1 at [27] – [28].
As held in Re Karaman and Secretary, Department of Social Services [2016] AATA 597 at [3], medical reports produced after the relevant date are only relevant to the extent that they are referrable to the person’s condition during the relevant period.
ISSUES FOR DETERMINATION
The issues this Tribunal has to consider as at 22 December 2015 or within 13 weeks after that day are as follows:
(a)first, whether Ms Incorvaia has a physical, intellectual or psychiatric impairment;
(b)secondly, whether the impairment(s) attract a total impairment rating of at least 20 points under the impairment tables. The tables (Impairment Tables) are contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (ImpairmentDetermination) and are made pursuant to s 26(1) of the Act; and
(c)thirdly, whether Ms Incorvaia has a continuing inability to work as defined in s 94(2) of the Act.
In coming to the correct and preferable decision, I have considered the following:
(a)the oral submissions and oral evidence of Ms Incorvaia;
(b)the T-documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
(c)the Secretary’s statement of issues, facts and contentions and oral submissions by the Secretary;
(d)supplementary T-documents lodged by the Respondent, including a letter dated 26 July 2017 from the Department to Ms Incorvaia enclosing reports from Dr Assad (dated 5 June 2017) and Ms Linda Howie (dated 29 June 2017);
(e)a bundle of documents lodged by the Applicant and received on 27 January 2017 containing numerous medical reports; and
(f)the relevant case law and legislation.
The Secretary conceded that Ms Incorvaia satisfied the first requirement under s 94(1)(a) of the Act. In particular, Ms Incorvaia was suffering from two conditions, namely a mental health condition and fibromyalgia.
IMPAIRMENT RATING
I need to consider whether Ms Incorvaia’s impairments attracted a total impairment rating of at least 20 points under the Impairment Tables during the relevant period.
Section 6(3) of the Impairment Determination provides that I can only assign an impairment rating if a condition affecting Ms Incorvaia which causes impairment is permanent and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.
Pursuant to s 6(4) of the Impairment Determination, a condition is “permanent” if the following is satisfied:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(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.
In determining whether a condition has been “fully diagnosed by an appropriately qualified medical practitioner” and whether it has been “fully treated”, the following must be considered under s 6(5) of the Impairment Determination:
(a)whether there is corroborating evidence of the condition;
(b)whether treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
A condition is “fully stabilised” under s 6(6) of the Impairment Determination 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.
As to the meaning of “reasonable treatment” in s 6(6), s 6(7) of the Impairment Determination provides that reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.
Once it is determined that Ms Incorvaia has a permanent impairment and that the permanent impairment is likely to persist for at least two years, I can then apply the Impairment Tables.
Pursuant to s 8 of the Impairment Determination, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Section 10(5) of the Impairment Determination provides that “where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table”. Section 10(6) of the Impairment Determination then goes on to provide that where a common or combined impairment resulting from two or more conditions is assessed in accordance with s 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Mental Health Condition
Whilst the Secretary concedes that Ms Incorvaia’s mental health condition was fully diagnosed, it was not conceded that her condition was fully treated and fully stabilised.
A number of psychiatrists confirmed Ms Incorvaia’s diagnosis of bipolar disorder, in particular:
(a)Dr Prem Chopra, consultant psychiatrist, in a report dated 25 July 2013, stated, “In summary, Laura has a history of bipolar affective disorder. She presents with dysphoric mood in the context of multiple stressors, particularly being separated from her children”; and
(b)Dr Zara Zia, psychiatry registrar, in a report dated 4 December 2013, stated, “Laura has a previous diagnosis of Bipolar Affective Disorder, dating 13 years back, with 1 previous admission in Argentina… and is separated from her husband…”
Albeit, I note that:
(a) Dr Ehsan Rahimikia, consultant psychiatrist, in a report dated 23 February 2016, was somewhat equivocal about Ms Incorvaia’s diagnosis and stated, “Bipolar is a likely diagnosis. Ms Incorvaia is likely to have had a manic episode in Argentina requiring hospitalization and several hypomanic episodes in recent years. The latter is difficult to establish due to her inability to describe symptoms clearly.” (emphasis added); and
(b)Ms Incorvaia stated to clinical psychiatrist, Dr Peggy Kardaras, as recorded in a report dated 13 November 2015, that, “Laura does not understand why she was given the diagnosis of Bipolar Disorder…”
In any event, even if it is accepted that the condition of bipolar was fully diagnosed (which, as indicated above, was conceded by the Secretary), the evidence is clear that Ms Incorvaia’s mental health condition was not fully treated and fully stabilised in the relevant period.
In this regard, I note the following evidence before the Tribunal:
(a) Ms Incorvaia was disengaged from treatment as reflected in the report from Dr Peggy Kardaras, dated 13 November 2015 where she stated, “Laura believes that she needs to be hospitalized and was hoping that I would be a psychiatrist to assist her with her medication and hospitalization. I believe that Laura needs to see a psychiatrist to be monitored and for a medication review but based on her presentation I do not believe she needs to be hospitalized. At this time Laura does not want to see a psychologist” (emphasis added). This disengagement was also recorded in a report Austin Health, dated 20 August 2016 that stated, “Laura has identified that she has always been ‘inconsistent with treatment and medications and doctors’” (emphasis added);
(b)Dr Ehsan Rahimikia in the report, dated 23 February 2016 stated, “If there was no significant improvement in her depressive symptoms despite being on the therapeutic dose of lithium for one month, then combination of fluoxetine and olanzapine can be trialed (sic). The dose of fluoxetine can be slowly increased to the maximum of 60mg…as tolerated but she would not probably need doses of olanzapine higher than 10 mg…” (emphasis added);
(c)on 13 March 2016, Ms Incorvaia was the subject of a temporary treatment order at the North East ANHS. The order noted that Ms Incorvaia was “disorganised with compliance with medication”;
(d)Austin Health Report, dated 1 April 2016 which set out a mental health plan and stated, “Laura was referred to CATS by EPS after BIBA after G.P. called police for welfare check after Laura made suicidal statements, c/o worsening depressive symptoms with low mood, increased physical pain, crying, tired…During CATS episode, Laura was recommenced on Lithium, Seroquel XR with daily support via nightly medications supervisions, regular phone support, medical reviews (Joy Quek CATS Psychiatrist – 29/2/16, 17/3/16, 24/3/16, 31/3/16) Dr Sathia – CATS Psche reg – 3/3/16), referred to CCS, Case manager Elizabeth Davis – apt (7^th April 2016). Improved in Mental state, accepting treatment and willing to engage with CCS. Discharged to CCS as voluntary client for follow up under Ilango.” (emphasis added); and
(e)Ms Janina Osman-Grela, clinical psychologist, in a report dated 20 March 2017 stated:
(i)“In summary, the information reviewed suggests that Ms. Incorvaia’s treatment for Bipolar Disorder prior to, and during the relevant period, did not meet the evidence based standards, due to her reluctance to engage, her non-adherence to treatment and the absence of any psychological interventions. Therefore, although Ms Incorvaia’s mental health condition (Bipolar Disorder) cannot be considered fully treated and stabilised within the meaning of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, during the relevant period …”
(ii)“A diagnosis of Borderline Personality Disorder (or Traits) could partially explain why Ms. Incorvaia’s condition failed to respond to years of pharmacological intervention focused solely on treating Bipolar Disorder. In addition, such diagnosis opens up considerations of new treatment options (e.g. Dialectical Behavioural Therapy).
If Ms. Incorvaia was indeed suffering from BPD and PTSD (alone, or in addition to Bipolar Disorder) at the time of her DPS claim, then the line of treatment would have had to change substantially, with the emphasis shifting from pharmacological treatment to psychological intervention, alongside carefully targeted medication.” (emphasis added)
In the absence of Ms Incorvaia’s mental health condition being fully treated and fully stabilised, I am unable to ascribe a rating to the condition.
Fibromyalgia Syndrome
Likewise, the Secretary accepts that Ms Incorvaia was diagnosed with Fibromyalgia Syndrome.
In a report by Dr Farshad Ghazanfari on 15 February 2016, he stated in relation to Ms Incorvaia’s Fibromyalgia Syndrome, under the heading “Impression and management plan”:
“- Fibromyalgia, anxiety and depression…- In order to optimize her pain management, I suggest that she taper the Lyrica dose to 150mg bd and continue Seroquel. I also advised her to taper down and then cease the Endep given the high side effect profile. I also asked her to use Valium as required…I will see Laura again in a few weeks’ time with the results of her blood test. I would highly recommend the value of a Psychiatrist and a pain psychologist in her complex chronic pain syndrome management.” (emphasis added)
Whilst it appears from the above evidence that Ms Incorvaia’s Fibromyalgia Syndrome was fully diagnosed, I do not consider on the evidence before the Tribunal that it was fully treated and fully stabilised.
Accordingly, I am unable to ascribe a rating to the said condition.
Other
Finally, and as a matter of completeness, Ms Incorvaia in her oral evidence made reference to her other medical conditions, namely arthritis, back pain and glaucoma. However, there was no substantive medical evidence put before the Tribunal regarding these conditions for the relevant period to indicate that they were fully diagnosed, fully treated and fully stabilised.
CONTINUING INABILITY TO WORK
Section 94(1)(c) of the Act provides that Ms Incorvaia must have had a continuing inability to work. Although it is unnecessary for me to consider this as Mr Incorvaia’s does not rate under the Impairment Tables, I will nonetheless address it for the sake of completeness.
Section 94(2)(aa) of the Act provides, among other things, that a person has a continuing inability to work because of impairment if the Secretary is satisfied that, in a case where the person’s impairment is not a severe impairment within the meaning of subsection 94(3B) of the Act, the person has actively participated in a program of support.
Assuming that Ms Incorvaia does not have a “severe impairment” (i.e. 20 points under the one Impairment Table) but in any event attracts 20 points in total, it is necessary for me to consider whether she has actively participated in a program of support.
Section 94(5) of the Act defines a “program of support” as a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i)is funded (wholly or partly) by the Commonwealth; or
(ii)is a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
Under s 94(3C) of the Act, a person has “actively participated” in a program of support if they have “satisfied the requirements set out in the relevant legislative instrument made by the Minister for the purposes of this subsection” (i.e. the Social Security (Active Participation for Disability Support Pension) Determination 2014) (POS Determination).
Section 7 of the POS Determination provides, among other things, that a person has actively participated in a program of support if they have complied with the requirements of and participated in a program for at least 18 months in the three years immediately prior to the claim, or if:
(a)the person completed the entire program of support that was less than 18 months duration;
(b)the person’s program of support was terminated prior to the claim 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; or
(c)the person was participating in a program of support at the date of claim and they were prevented, solely due to their impairments, from improving their capacity to find, gain or remain in employment through continued participation.

Ms Incorvaia had not participated in a program of support in the three years before she made the claim with the Department. Ms Incorvaia’s connection with a program of support (E-Focus in Heidelberg) occurred on or about 17 May 2016, which was after the relevant period.
Furthermore, in my view, Ms Incorvaia’s conditions are not sufficient to prevent her from doing any work independently of a program of support within the next two years and from preventing her from undertaking a training activity in the next two years.
Section 94(5) of the Act provides that “work” means:
Work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
Section 94(5) of the Act also provides that “training activity” means:
One or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a)education;
(b)pre-vocational training;
(c)vocational training;
(d)vocational rehabilitation;
(e)work-related training (including on-the-job training).
The Job Capacity Assessment (JCA) Report stated that Ms Incorvaia had a temporary work capacity of 8 – 14 hours per week and rising to 23 – 29 hours per week within two years with intervention in light, less skilled areas, such as sales or in the hospitality industry. The evidence indicated that she had previously expressed interest working in sales as a cashier.
I accept the JCA Assessor’s evidence with respect to Ms Incorvaia’s work capacity given the Assessor’s expertise in the area. Furthermore, that evidence appears to be reasonable given her previous work history and improvements that may be made with respect to her mental health with the appropriate treatment.
Accordingly, I am not satisfied that Ms Incorvaia had a continuing inability to work.
CONCLUSION
By reason of the foregoing paragraphs, Ms Incorvaia’s claim for DSP cannot succeed and the decision under review must be affirmed.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Mr Andrew Cameron, Member

[sgd]......................................................................
Associate
Dated: 19 June 2018

Date of hearing: 31 July 2017

Representative for the Applicant: Self-represented

Advocate for the Respondent:
Jenna Molan

Department of Human Services