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

Iseppi and Secretary, Department of Social Services (Social services second review) [2017] AATA 2744 (21 December 2017)
Division:GENERAL DIVISION
File Number: 2017/1200
Re:Shelley Iseppi
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Nolan
Date:21 December 2017
Place:Brisbane

The decision under review is affirmed.
..............................[Sgd]..........................................
Senior Member Nolan
CATCHWORDS
SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during relevant period – whether Applicant had 20 impairment points – spinal condition – other conditions – decision under review is affirmed
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
REASONS FOR DECISION
Senior Member Nolan
21 December 2017
INTRODUCTION

On 24 May 2016, Shelley Isppie (the “Applicant”) applied for a Disability Support Pension (“DSP”). In the portion of the DSP claim form where the Applicant was to list her disabilities, illnesses or injuries, she wrote:
Disc degeneration at L5-S1 advanced; [and]
Chronic L5-S1 (L) disc extrusion.[1]
The application was rejected. The Applicant now seeks a review of that decision.
[1] Exhibit 1, T Documents, T20, p 122, DSP claim form, dated 24 May 2016.
The central issue for the Tribunal to determine is whether the Applicant qualified for DSP at the date of her claim, 24 May 2016 or within 13 weeks thereafter, being up until

23 August 2016 (“the Relevant Period”).
HISTORY OF THE MATTER
The Applicant lodged an application for DSP on 24 May 2016.[2] On 25 July 2016 the Applicant’s claim was rejected.[3]
[2] Exhibit 1, T Documents, T20, pages 97-126, DSP claim form, dated 24 May 2016.
[3] Exhibit 1, T Documents, T25, pages 146-7, Rejection of DSP, dated 25 July 2016.
The Applicant sought review by a Centrelink authorised review officer (“ARO”). The ARO affirmed the rejection on 25 October 2016.[4] The Applicant sought further review by the Administrative Appeals Tribunal’s Social Security and Child Support Division (“SSCSD”). On 14 February 2017, the decision to reject the application was again affirmed.[5]
[4] Exhibit 1, T Documents, T27, pages 150-4, ARO decision, dated 25 October 2016.
[5] Exhibit 1, T Documents, T3, pages 5-9, SSCSD decision, dated 14 February 2017.
On 1 March 2017, the Applicant sought review of the General Division of this Tribunal.[6]
[6] Exhibit 1, T Documents, T2, pages 3-4, Application for Review, dated 1 March 2017.
ISSUES FOR THE TRIBUNAL
The issues for me to consider are:
(a)whether, during the Relevant Period, the Applicant had a physical, intellectual or psychiatric impairment which was fully diagnosed, treated and stabilised;
(b)whether, at the relevant time, the Applicant’s conditions warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
(d)whether the Applicant has a continuing inability to work.
Before determining the above, it is convenient to set out the relevant legislative framework.
LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that:
·the Applicant has a physical, intellectual or psychiatric impairment;
·the Applicant’s impairment is of 20 points or more under the Impairment Tables; and
·the Applicant has a continuing inability to work.
The Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 24 May 2016). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[7] Therefore, the Relevant Period for considering whether the Applicant qualified for DSP is between 24 May 2016 to 23 August 2016. The Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[8]
[7] See ss 3, 4(1), 41 and 42 Schedule 2, Part 2 of the Administration Act; see Fanning and Secretary, Department of
Social Services [2014] AATA 447 at [33].
[8] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[9] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[10] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[11]
[9] See s 26(1) of the Act.
[10] See s 5(2) of the Determination.
[11] See s 6(1) of the Determination.
Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results is more likely than not, in light of the available evidence, to persist for more than two years.[12] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not to persist for more than two years.[13]
[12] See s 6(3) of the Determination.
[13] See s 6(4) of the Determination.
In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.[14]
[14] See s 6(5) of the Determination.
A condition is “fully stabilised” if:
(d)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
(e)the person has not undertaken reasonable treatment for the condition and:
(f)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
(g)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[15]
[15] See s 6(6) of the Determination.
“Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[16] An impairment rating can only be assigned in accordance with the rating points in each Table.
[16] See s 6(7) of the Determination.
In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.
CONSIDERATION
Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?
The Respondent accepted that the Applicant has impairments for the purposes of section 94(1)(a) of the Act.[17] I am satisfied that concession is appropriate in light of the medical evidence.
[17] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 28 July 2017 at [4.23].
I will now consider whether the Applicant’s impairments can attract impairment points under the Impairment Tables.
Spinal Condition
The Respondent concedes that the “Applicant’s spinal (cervical and lumbar spine) condition was fully diagnosed.”[18] However, the question remains whether it was fully treated and fully stabilised during the Relevant Period. The Respondent contends that the Applicant’s spinal condition is not fully treated and stabilised and thus should not be assigned an impairment rating under the Impairment Tables.[19] On the basis of the medical evidence before me, I agree that the Applicant’s spinal condition was not fully treated and fully stabilised during the Relevant Period.
[18] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 28 July 2017 at [4.25].
[19] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 28 July 2017 at [4.25]- [4.26].
In June 2016 the Applicant’s treating general practitioner, Dr Borojevic, sought an MRI of the Applicant’s spine. The MRI results indicated:
1Moderate-severe disc degeneration…with posterior disc osteophyte complexes resulting in moderate-severe central canal stenosis.
2Probable cord myelomalacia at C5/6 due to severe central canal stenosis
3Moderate-severe multilevel bilateral foraminal stenosis.[20]
[20] Exhibit 1, T Documents, T23, page 136, Medical report provided by Darling Downs Radiology, dated 3 June 2016.
Dr Borojevic, subsequently referred the Applicant to the neurosurgery department of the Princess Alexandra Hospital for a specialist review to obtain an urgent opinion and management of the condition.[21] Following that referral, the Applicant “underwent a C5/6 anterior cervical discectomy and fusion in July 2016 for progressive cervical myelopathy.”[22]
[21]         Exhibit 1, T Documents, T21, page 105, Medical report of Dr Borojevic, dated 7 June 2016.
[22]         Exhibit 1, T Documents, T29, page 156, Medical report of Dr Patricia Mulholland on behalf of Dr Antonio
Tsahtsarlis, dated 12 January 2017.
On 10 January 2017, during a follow up review by the neurosurgical outpatient clinic, Dr Tsahtsarlis observed that the applicant’s mobility had “improved significantly when compared to preoperatively.” Dr Tsahtsarlis recommended “up titrating her Lyrica to help with her symptoms, or consideration of Gabapentin.”[23]
[23] Exhibit 1, T Documents, T29, page 156, Medical report of Dr Patricia Mulholland on behalf of Dr Antonio
Tsahtsarlis, dated 12 January 2017.
The Applicant also appears to have had saroliliac joint injections during the Relevant Period.[24] Associate Professor Seex observed that this treatment had “obviously made things substantially better.” He recommended that further treatment consisting of “musculoskeletal based therapy” and “multidisciplinary pain management.”[25] On the evidence before me, it is unclear whether such treatment was undertaken.
[24] Exhibit 3, Bundle of medical certificates and medical reports, Medical report of Associate Professor Kevin Seex,
dated 12 August 2016.
[25] Exhibit 3, Bundle of medical certificates and medical reports, Medical report of Associate Professor Kevin Seex,
dated 12 August 2016.
Based on the above medical evidence, I find that the Applicant’s spinal condition could not be said to have been fully treated and fully stabilised during the Relevant Period. The medical evidence indicates that the Applicant had not undertaken reasonable treatment for the condition and that further reasonable treatment may have resulted in significant functional improvement. Given that the Applicant’s condition is not fully treated and fully stabilised, I cannot assign it an Impairment Rating under the Impairment Tables.
In the event that I am wrong and (contrary to my finding) the Applicant’s spinal condition is held to have been fully treated and fully stabilised, I briefly consider the impairment rating that would otherwise be assigned under the Impairment Tables.
The relevant Impairment Table is Table 4 – Spinal Function. The Applicant provided medical evidence from several of her treating General Practitioner’s on the functional impact of her spinal condition. Notably, a medical certificate of Dr Borojevic dated 18 May 2017 listed the functional symptoms of the applicant’s condition as follows:
can not perform any over head activities
has difficulties to turn her head and bend her neck without moving her trunk
has limited movements to bend forward to pick up a light object from a table
cannot sit or stand for [a] long tome
mobility is reduced due to neck an lower back pain [sic][26]
[26] Exhibit 3, Bundle of medical certificates and medical reports, Medical certificate of Dr Borojevic, dated
18 May 2017.
This appears to be consistent with the comments of Dr Houston in a medical report dated 19 January 2017 which stated that the applicant’s condition “renders her unable to sit or stand for longer than 5 minutes at any one time” and causes “severe function impact on activities involving spinal function, including overhead lifting, bending, twisting and turning.” [27]
[27] Exhibit 3, Bundle of medical certificates and medical reports, Medical report of Dr Houston, dated
19 January 2017.
Both the medical report of Dr Houston and the medical certificate of Dr Borojevic would appear to support a finding that the Applicant demonstrated during the relevant period the necessary descriptors for her condition to be assigned a rating of 20 points. However, this medical evidence post-dates the Relevant Period and does not state that the observations were in relation to the functional impairment during the Relevant Period. Accordingly, I find that the medical evidence of Dr Houston and Dr Borojevic is not relevant.
The Respondent contends that the Applicant’s impairment attracts 0 points under Table 4.[28] In order to assign the higher rating of 5 points, the Applicant would need to have demonstrated that during the Relevant Period she had some difficulty in:
(a)activities over head height (e.g. activities requiring the person to look upwards); or
(b)bending to knee level and straightening up again without difficulty; or
(c)turning [her]…trunk or moving [her]…head (e.g. to look to the sides or upwards).
[28] Exhibit 3, Bundle of medical certificates and medical reports, Medical certificate of Dr Kevin Chiu dated
12 January 2016.
The Applicant’s evidence at the hearing was that, during the Relevant Period, she:
·could sit for 30 minutes;
·could bend over to pick up an item such as a newspaper, but required something to hold onto;
·was unable to complete household tasks such as cooking as she cannot lift the dishes;
·had difficulty washing her hair;
·only showered when she had to and stood on a mat or sat on a chair to do so;
·walked with the use of aids;
·had difficulty dressing herself and required assistance depending on the clothing in question; and
·holds a licence, but does not drive.
Self-reporting of symptoms alone is insufficient to establish that a person meets the descriptors for an impairment rating. Given that there is no corroborating medical evidence which relates to the Relevant Period I am satisfied that the appropriate impairment rating for the Applicant’s spinal condition under the Impairment Table 4 is 0 points. Even if I were to assign the applicant 5 points it would not make any difference to the outcome of her application in light of my other findings (see below).
Other Conditions
The Applicant also reported suffering from depression and diverticular disease.
Consistent with the Applicant’s position before the SSCSD,[29] the Applicant stated that she did not wish for her other conditions to be assessed for the purpose of her claim for DSP. Accordingly, I have not considered the Applicant’s other condition.
[29] Exhibit 1, T Documents, T3, page 7, SSCSD decision, dated 14 February 2017.
For completeness I would note that at the hearing, the Applicant conceded that her depression had not been fully diagnosed. There is no evidence before me to suggest that the Applicant mental health condition has been diagnosed by a psychiatrist or clinical psychologist. I accept that the Applicant’s concession is appropriate based on the evidence before me and find that the Applicant’s mental health condition is not fully diagnosed.
Conclusion on points
On the basis of the evidence before me, I am not satisfied that the Applicant’s spinal condition was fully treated and fully stabilised during the Relevant Period. Therefore no impairment rating under the Impairment Tables can be assigned.
In the alternative, if the Applicant’s spinal condition was fully treated and fully stabilised I find that the appropriate impairment rating for the condition under Impairment Table 4 is 0 points.
Continuing Inability to Work?
Given that the Applicant’s conditions do not attract an impairment rating of 20 points or more during the Relevant Period, it is not necessary for me to consider whether he satisfies the remaining criteria to qualify for the DSP.
CONCLUSION
For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons
for the decision herein of
Senior Member Nolan.

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Associate
Dated: 21 December 2017

Date of hearing: 18 October 2017

Applicant: In person

Solicitors for the Respondent: Sparke Helmore Lawyers

[2012] AATA 922 at [34].

[2017] AATA 2744

21 December 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Statutory Construction

Date of hearing:	18 October 2017
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore Lawyers