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

[2017] AATA 838

Inukihaangana and Secretary, Department of Social Services (Social services second review) [2017] AATA 838 (9 June 2017)

Division:GENERAL DIVISION

File Number(s):2016/6166      

Re:Filinau Inukihaangana

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Member

Date:9 June 2017

Place:Sydney

The decision under review is affirmed.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – morbid obesity – asthma – bilateral knee arthritis – back pain - coronary artery disease –– the applicant’s impairments total twenty points – the applicant does not have a severe impairment – the applicant has not participated in a program of support – the decision under review is affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) sch 2 cl 4
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

9 June 2017

1. On 14 March 2014 Ms Inukihaangana, who is now 64 years old, lodged a claim for Disability Support Pension (DSP) on the basis that she suffered impairment because of coronary artery disease, bilateral knee arthritis and asthma.

2. The claim was rejected by Centrelink 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 Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).

3. In a Job Capacity Assessment (JCA) Report completed on 15 May 2014 an assessor assigned 10 points under Impairment Table 1 with respect to coronary artery disease and 5 points under Impairment Table 3 with respect to lower limb function because of knee arthritis and obesity.

4. There is no evidence before the Tribunal with respect to any review of this decision by Centrelink.

5. On the 17 August 2015 Ms Inukihaangana lodged a new claim for DSP.

6. The claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not satisfy section 94(1)(c) of the Act because she had not “actively participated in a program of support”. This requirement is set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).

7. In a decision dated 23 September 2016, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision to reject Ms Inukihaangana’s claim. AAT1 found that Ms Inukihaangana had a total of 25 points under the Impairment Tables with 10 points under Table 1, 10 points under Table 3 and 5 points under Table 4 and, therefore, satisfied s 94(1)(b) of the Act.

8. However, AAT1 found that Ms Inukihaangana had not actively participated in a POS and therefore did not satisfy section 94(1)(c) of the Act and did not qualify for DSP.

9. In this proceeding, Ms Inukihaangana seeks review of the decision of AAT1. At the hearing, she was self-represented, supported by her carer and assisted by a Tongan language interpreter.

   ISSUES

10. In order to qualify for DSP, Ms Inukihaangana 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 clause 4(1) of Schedule 2 to the Social Security (Administration) Act1999, that is, between 17 August 2015 and 16 November 2015 (the claim period).

11. Section 94(1) of the Act provides that a person is qualified for DSP if:

    ·the person has a physical, intellectual or psychiatric impairment (94(1)(a)); and

    ·the person’s impairment is of 20 points or more under the Impairment Tables (94(1)(b)); and

    ·the person has a continuing inability to work as defined by the Act (94(1)(c)(i)).

12. The Respondent concedes, and the Tribunal accepts, that Ms Inukihaangana suffers medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of her claim for DSP.

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

14. 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)).

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

16. Ms Inukihaangana contends that she suffers significant impairment as a result of several medical conditions which include coronary artery disease, bilateral knee osteoarthritis, morbid obesity, hypertension, hyperlipidaemia, asthma, lower back pain, hepatitis B carriage and gall bladder calculi.

17. In particular, Ms Inukihaangana contends that she suffers severe impairment with respect to functions requiring physical exertion and stamina with reference to Impairment Table 1.

18. The Respondent accepts that Ms Inukihaangana’s morbid obesity and asthma are permanent for the purposes of the Impairment Determination and contends that a rating of 10 points under Impairment Table 1 can be assigned.

19. The Respondent accepts that Ms Inukihaangana’s bilateral knee osteoarthritis is permanent for the purposes of the Impairment Determination and contends that a rating of 5 points under Impairment Table 3 can be assigned

20. The Respondent accepts that Ms Inukihaangana’s spine condition is permanent for the purposes of the Impairment Determination and contends that a rating of 5 points under Impairment Table 4 can be assigned.

21. The Respondent accepts that during claim period, Ms Inukihaangana satisfied section 94((1)(b) of the Act

22. However, the Respondent contends that, during the claim period, Ms Inukihaangana could not satisfy section 94(1)(c) of the Act as she did not have a “continuing inability to work” because he had not actively participated in a program of support (POS) as required by section 94(2)(aa) of the Act . Therefore, she could not qualify for DSP.

23. Section 94(2)(aa) of the Act provides that a person has a continuing inability to work because of an 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 (3B)… the person has actively participated in a POS within the meaning of subsection (3C)”. 

24. Subsection 3B provides that a person’s impairment is a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

    25.Section 7 and 5 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) provide, inter alia, that a person has actively participated in a POS if they have participated in a POS for a period of at least 18 months during the 36 months prior to the date of claim.

25. It is agreed that Ms Inukihaangana had not actively participated in a POS prior to the date of claim or during the claim period.

26. It follows that Ms Inukihaangana’s claim cannot succeed unless she suffered a severe impairment during the claim period. This means that the determinative issue in this matter is whether, during the claim period Ms Inukihaangana had a rating of 20 points or more under a single Impairment Table.

    MS INUKIHAANGANA’S EVIDENCE

27. Since March 2016, Ms Inukihaagana has lived alone in a ground floor unit located in a public housing village. Previously, she lived with her daughter who occupied a dwelling which had twelve steps that were causing Ms Inukihaagana some difficulty.

28. Since January 2017, Ms Inukihaagana has been assisted by a voluntary carer who attends on Monday to Friday between 9 am and 5 pm. The carer provides assistance with activities of daily living, household chores, prepares meals which can be heated in a microwave, does the shopping and takes Ms Inukihaagana to appointments.

29. Ms Inukihaagana told the Tribunal that currently she does not leave home without the assistance of a carer or a family member. She is usually transported by car and does not use public transport. She said that she has a driver’s licence but has not driven for a “couple of years”.

30. When asked by the Tribunal to describe her most significant impairment Ms Inukihaagana explained that she has difficulty with mobility, particularly with walking. She attributes this difficulty to her knee arthritis, particularly the right knee, and to shortness of breath.

31. Ms Inukihaagana is able to walk around her home alone with a four-wheel trolley. Each day, as a form of exercise, she walks for approximately 30 metres around the village with the assistance of her carer. She has some difficulty in standing from a sitting position because her right knee tends to lock.

32. Ms Inukihaagana told the Tribunal that her mobility has deteriorated over the last twelve months and conceded that in 2015, during the claim period, the limitations on her mobility were not as severe and that her activities were not as impaired as they are currently.

33. In her claim form, dated 17 August 2015, Ms Inukihaagana lists her disabilities as “asthma, gout, heart, cervical pain/headache” and stated that she needed “to lose 50kg” before she could undergo knee replacement surgery. She also indicated that during winter in Canberra she suffered a very “bad” asthma attack and chest infection which, over a three month period, required several hospital attendances.

    MEDICAL EVIDENCE

34. A coronary artery study performed by Dr Juergens on 26 February 2014 is reported as showing “minor coronary artery disease”.

35. In a letter to Dr Ton Lee, dated 6 March 2014, Dr Nashed, a cardiologist, states that Ms Inukihaagana came back for review following the coronary angiography which was “normal with no evidence of ischaemic heart disease.” He made no mention of any functional impairment and recommended continuation of prophylactic medication.

36. In support of Ms Inukihaagana’s claim for DSP, in March 2014, Centrelink received a Medical Report dated 1 April 2014 that has been assumed to have been provided by Dr Ton Lee, her general practitioner (GP) at that time.  The signature is illegible and no practice address is provided.

37. The report lists “coronary artery disease” as the medical condition with the most functional impact and describes the impact on Ms Inukihaagana’s ability to function as “general debility, angina, complicated by morbid obesity”.

38. The report also lists “severe osteoarthritis, affecting specially knees” as a medical condition which has a significant impact on Ms Inukihaagana’s ability to function and describes this impact as “disabling pain, morbid obesity”.

39. The report lists several other medical conditions that are generally well managed and that cause minimal or limited impact on Ms Inukihaagana’s ability to function including morbid obesity, bleeding gastric ulcer, hypertension, hyperlipidaemia, asthma, hepatitis B carrier, gall bladder calculi but provides no other details.  

40. In a letter to Dr Ton Lee dated 25 June 2014, Dr Khoury, a cardiologist states, inter alia, the following:

    ….I last saw her about 5 years ago. In the interim she has had a positive MIBI scan and underwent elective angioplasty and stenting earlier this year after seeing Dr Nashed. At that time Finau was experiencing exertional chest tightness. More recently she went to Canterbury Hospital after waking up at night with well localised chest pain…..there was no exertional component she was not dyspnoeic and there were no other suspicious symptoms. She remains active trying to walk for 10-20 minutes per day. She has not had any other cardiac symptoms.

41. I note that Dr Juergen’s report of 26 February 2014 did not mention angioplasty or stenting.

42. Dr Khoury concluded that the chest pain was atypical for cardiac ischemia, did not alter her treatment and recommended a follow up with Dr Nashed.

43. In a letter to Dr Ton Lee, dated 6 March 2015, Dr Nashed states that Ms Inukihaagana attended a cardiac assessment and noted that she had remained “quite stable from the cardiac point of view” and denied any “chest pain, shortness of breath or palpitations.”

44. Dr Nashed confirmed that the coronary angiogram taken in 2014 was normal and the physical examination was “unremarkable”. He recommended the continuation of current medication and annual review. Again, there was no mention of any functional impairment.

45. On 31 May 2015, Ms Inukihaagana attended Bankstown-Lidcombe Hospital Emergency Department at 17:41 complaining of “shortness of breath”.

46. The discharge report included, inter alia, the following details as background:

    62 year old F – self presented...lives with daughter... independent ADLs…asthma-states that she used to have home nebs-but she cannot recall where she has put it …IHD – with PTCA feb 2014 – minor CAD….high BMI….Meds – Seretide 2 puffs bd – Ventolin 2 puffs prn

47. Ms Inukihaagana complained of shortness of breath, wheeze, cough and yellow phlegm that had been present for one week and had not fully responded to frequent Ventolin puffs and antibiotics.

48. The hospital treatment included nebulised Ventolin, Ventolin puffs using a spacer and oral prednisolone. 

49. Ms Inukihaagana was discharged at 21:23 and was advised to take 12 puffs of Ventolin via spacer every 4 hours until she felt better and oral prednisolone for three days.

50. A Government contracted Disability Medical Assessment (DMA) report was completed on 28 January 2016.

51. The assessor notes, inter alia, stated as follows:

    ·Client reports pain in affected joints especially in her right knee…is unable to perform full squat or kneel, walk for long distances and climb stairs. Client uses walking stick to ambulate…Client is on waiting list for knee surgery, which is unlikely to be undertaken at this stage due to her morbid obesity. Her arthritis is chronic and her mild functional impact is likely to persist for more than 24 months….Impairment rating  5 points -Table 3 – Lower limb function 

    ·Morbid obesity with BMI of 52 and weight 150 kg. Her morbid obesity has significant impact on her level of physical exertion….client reports shortness of breath on exertion (she also has co-existing Asthma, COAD) which reportedly impacts on her performance in ADL’s including cleaning, shopping etc. She reports that her ability to walk outside her home is significantly reduced [d]ue to her shortness of breath. Obesity also worsens her pain symptoms… Impairment rating 10 Points – Table 1-Functions requiring Physical Exertion and Stamina

    ·Severe narrowing of L4-L5 central canal causing significant pain lower back…confirmed by radiologist (Dr Chari) report dated 15.7 2014.Clients reports significant back pain that restricts her ability to perform house hold activities, low back pain impacts on her ability to bend forwards or lift heavy objects, she is unable to sit or stand for prolonged periods and also impacts on her mobility …Impairment rating 5 points  - Table 4- Spinal function

52. In a letter dated 6 May 2017, Dr Ton Lee expresses the opinion that Ms Inukihaagana “suffers from Morbid Obesity at the recommended rating of 20 points, according to part 3 Table 1; functions requiring Physical Exertion and Stamina”.

53. Dr Lee states that she experiences symptoms such as “shortness of breath, fatigue, angina, cardiac issues, chronic asthma when performing light physical activities” and due to these symptoms she is unable to perform all the activities detailed in the severe category of Impairment Table 1.

    Other evidence

54. In a Job Capacity Assessment (JCA) report submitted 15 May 2014 the assessor    recommended a rating of 10 points under Impairment Table 1 due to the “combined impacts associated with the client’s conditions on physical exertion and endurance limitations (i.e. cardiac, asthma and obesity)”. 

55. The assessor recommended a rating of 5 Points under Impairment Table 3 on the basis that that the client “is able to stand aided for approximately 10 minutes….able to walk with a walking stick for approximately 10 minutes…..has difficulty negotiating stairs however is able to do this with her walking stick and the hand rail.”

56. In a JCA report submitted on 9 November 2015 the assessor recommended 20 points under Impairment Table 1 with respect to the condition of morbid obesity.  The assessor noted the “Client reports difficulty showering…..has limited ability to walk, uses a stick to pick up things from the floor…is unable to hang the washing out, do any shopping, do any cleaning….can sit for approximately 30 minutes to fold and iron clothes.”

57. With respect to osteoarthritis and lower limb function, the assessor stated that zero points were recommended “due to the risk of over counting as table one captures the functional impact of this condition”.

58. At AAT1 on 23 September 2016, the Member noted at paragraph 18, that Ms Inukihaagana “has difficulty climbing stairs, cannot stand for more than five minutes, needs to use a walking stick and cannot walk very far outside her home” and found that there was a moderate functional impairment on activities requiring the use of the lower limbs and assigned 10 points under Impairment Table 3.

59. With respect to the condition of morbid obesity the Member noted, at paragraph 22,  that Ms Inukihaagana:

    is able to fold the clothes and put them away when washed. …can make the bed and change the sheets…does some ironing, sewing and cooking, especially cakes….has difficulty performing some household activities and cannot use public transport.

    The member also found that there was a moderate functional impact on activities requiring physical exertion or stamina with a rating of 10 points under Impairment Table 1 being awarded.

    CONSIDERATION

60. During the claim period, Ms Inukihaangana clearly suffered several medical conditions and contends that she suffers a severe impairment because of two conditions, namely, morbid obesity and bilateral knee osteoarthritis.

61. Two previous assessments have applied 10 points under Table 1 Functions requiring Physical Exertion and Stamina (morbid obesity) and Table 3 Lower Limb Function (knee arthritis). One assessment has applied a rating of 20 points under Table 1 by combining the conditions.

62. As noted above, Ms Inukihaangana’s application for review can succeed only if the Tribunal finds that, during the claim period, she suffered a severe impairment having an impairment rating of 20 points under a single Impairment Table.

63. Therefore, the definitive issue in this matter is whether there is sufficient evidence to persuade the Tribunal that, during the claim period, Ms Inukihaangana’s rating under Table 1 or Table 3 was 20 points or more.

64. Ms Inukihaangana’s oral evidence tends to suggest that currently she has significant functional impairment with respect to mobility which she attributes to a difficulty with breathing during physical activity because of her obesity and difficulty with lower limb function because of knee arthritis, particularly the right knee. What is not clear from her evidence is the relative contribution of each of the conditions to the claimed severity of her impairment.

65. Furthermore, her evidence was that her claimed impairment has become more severe over the previous twelve months so that her level of impairment during the claim period is uncertain.

1. An additional difficulty for Ms Inukihaangana’s claim is the lack of reliable corroborative evidence with respect to the level of her impairment during the claim period.

2. The available medical evidence which relies primarily on Ms Inukihaangana’s self-report of symptoms can best be described as incomplete, inconsistent and generally unhelpful.

3. With respect to the claim period the only relatively contemporaneous medical evidence is provided by the discharge summary from Bankstown-Lidcombe Hospital (discharge summary) dated 31 May 2015 and the Government contracted Disability Medical Assessment dated 28 January 2016.

4. There is no contemporaneous medical report from Ms Inukihaangana’s GP in support of her claim.

5. The discharge summary, less than three months prior to the date of claim, describes an acute episode of increased asthma symptoms, which appear to have responded quickly to a temporary increase in medication. It is noted in the summary that Ms Inukihaangana “self- presented” and was independent with activities of daily living. She was discharged from the Emergency Department after less than 4 hours and there is no mention of a chronic problem with shortness of breath during physical activity.

6. The disability medical assessment does not support Ms Inukihaangana’s claim with respect to severe impairment in either Table 1 or Table 3. The assessment is somewhat unhelpful, in that, the assessor appears to have simply applied Ms Inukihaangana‘s self-report of symptoms to the various descriptors in the Impairment Tables and, in my view, this cannot be considered a comprehensive assessment of her functional impairment.

7. In letter of 6 May 2017, Dr Lee asserts that, in his opinion, because of her morbid obesity Ms Inukihaangana suffers severe functional impact on her activities requiring physical exertion or stamina and advocates that a rating of 20 points under Impairment Table 1 should be applied.

8. Dr Lee states that Ms Inukihaangana experiences symptoms “such as shortness of breath, fatigue, angina” when performing “light physical activities” but provides no other details to support his opinion.

9. I note that at this point there is no other evidence before the Tribunal to support Dr Lee’s assertion that Ms Inukihaangana suffers from angina.

10. In his letter, Dr Lee states that Ms Inukihaangana is unable to do all of the descriptors set in the severe category of Impairment Table 1 and essentially reproduces that part of the Table.

11. The difficulty with Dr Lee’s opinion is that the letter is dated almost two years after the date of claim, and in my view, provides only a superficial explanation to support his opinion and does not address Ms Inukihaangana’s functional impairment during the claim period.

12. Furthermore, in the medical report dated 1 April 2014, attributed to Dr Lee, “coronary artery disease” is claimed to be the medical condition having the most impact on Ms Inukihaangana’s ability to function. This appears to be quite misleading as it is inconsistent with the documentary evidence provided by two cardiologists which does not support the claim that Ms Inukihaangana’s coronary artery disease caused significant functional impairment. This raises some concerns about the reliability of Dr Lee’s assessment of Ms Inukihaangana functional impairments.

13. Also, in the report, “morbid obesity” was stated to be generally well managed and caused minimal or limited impact.

14. In his letter of 6 May 2017, Dr Lee has provided no explanation for the claimed changes in Ms Inukihaangana’s ability to function with respect to her morbid obesity.

15. Therefore, I have placed little weight on the opinion expressed by Dr Lee in his letter of 6 May 2017.

16. Also, apart from her self-report of symptoms there is little convincing corroborative evidence with regard to the functional impairment caused by Ms Inukihaangana’s bilateral knee osteoarthritis.

17. Notwithstanding the difficulties with the evidence, I accept that, during the claim period Ms Inukihaangana’s, morbid obesity and bilateral knee osteoarthritis did have a functional impact and, for present purposes, I accept that a rating of 10 points under Impairment able 1 and Impairment and 10 points under Table 3 can be assigned.

18. However, I am satisfied that there is insufficient corroborative evidence to support a conclusion that during the claim period Ms Inukihaangana had a rating of 20 or points or more under Impairment Table 1 or Impairment Table 3.

19. Therefore, during the claim period, Ms Inukihaangana could not satisfy section 94(1)(c) of the Act and did not qualify for DSP.

    DECISION

20. For reasons set out above Ms Inukihaangana did not satisfy section 94(1)(c) of the Act and did not qualify for DSP.

    The decision under review is affirmed.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated: 9 June 2017

Date(s) of hearing:	25 May 2017
Applicant:	In person
Solicitors for the Respondent:	E Ulrick, Department of Human Services