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

[2016] AATA 641

Jaeger and Secretary, Department of Social Services (Social services second review) [2016] AATA 641 (26 August 2016)

Division	GENERAL DIVISION
File Number(s)	2016/1346
Re	Rebecca Jaeger
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	26 August 2016
Place	Sydney

The decision under review is affirmed.

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

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant suffers an impairment –  applicant suffers from a spinal condition and benign paroxysmal positional vertigo – spinal condition fully diagnosed, treated and stabilised – spinal condition has moderate functional impact – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

CASES

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2014 (Cth)

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

REASONS FOR DECISION

Professor R McCallum AO, Member

26 August 2016

INTRODUCTION

1. The Applicant, Ms Rebecca Jaeger currently lives in New South Wales with her parents. Owing to her spinal condition, Ms Jaeger has been living with her parents for most of the last fifteen years, and in January 2015, Ms Jaeger moved in with her parents permanently.

2. Ms Jaeger is a person with pluck and enterprise. Before the onset of her lower back medical problems, Ms Jaeger had been an Australian Softball Champion and an NRL Cheerleader. Despite her spinal condition, in 2011 she completed a degree in sports and performance psychology and has tried to run her own business.

   APPLICATION FOR DSP

3. On 22 July 2015, Ms Jaeger made a claim for Disability Support Pension (DSP). She did not accompany this application with a current medical certificate.

4. On 22 September 2015, Ms Jaeger undertook a Job Capacity Assessment (JCA). In the JCA report dated 23 September 2015, the Assessor concluded that Ms Jaeger's psychiatric disorder was not fully treated and stabilised. The assessor further concluded that Ms Jaeger's spinal disorder was not fully diagnosed, treated and stabilised. Accordingly these impairments could not be rated under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the impairment tables).

5. Ms Jaeger's baseline capacity to work was assessed as 8-14 hours per week, increasing to 15-22 hours per week within two years with intervention.

6. On 24 September 2015, the claim was rejected by the Department of Human Services, which is better known as Centrelink.

7. Ms Jaeger sought review from an Authorised Review Officer (ARO), however, the ARO affirmed Centrelink's decision.

   AAT FIRST REVIEW

8. Ms Jaeger sought review from the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT). This is an AAT “first review”.

9. The Social Security and Child Support Division of the AAT concluded that Ms Jaeger's spinal condition comprised two elements. First, the longstanding issues at the L4/L5 level of her spine for which she had a laminectomy in August 2005. Second, the newly identified lesion at the L3 level of her spine.

10. The AAT stated as follows.

    22 ... Whilst there is a lack of definitive medical evidence before the Tribunal as to the expected duration of the spinal condition upon Ms Jaeger's ability to work or study for 15 hours or more per week, having regard to these matters and subsections 6(5), 6(6) and 6(7) of the Impairment Determination, the Tribunal is satisfied that on balance Ms Jaeger's spinal condition could be considered fully treated and fully stabilised as at the date of the claim. On that basis the Tribunal finds that the spinal condition could be considered permanent as at the date of the claim such that an impairment rating can be assigned.

11. In relation to Ms Jaeger's attacks of vertigo, the AAT first review concluded that there was insufficient evidence before it about Ms Jaeger's vertigo.  

12. The AAT first review held that Ms Jaeger's spinal condition has a moderate impact and thus assessed it at 10 points under table 4 of the impairment tables which is titled "Spinal condition".

13. As Ms Jaeger did not attain a rating of 20 points, the AAT first review affirmed Centrelink's decision.

    AAT SECOND REVIEW

14. Ms Jaeger has appealed to the General Division of the AAT, and accordingly this is an AAT “second review”.

    THE LEGISLATION

15. The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

16. The criteria for DSP are set forth in section 94 of the SS Act. In Ms Rebecca Jaeger's circumstances subsection 94(1) relevantly provides:

    (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;

    …

17. Put simply, I must be satisfied, first, that Ms Jaeger has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the impairment tables. Finally, I must be satisfied that Ms Jaeger has a continuing inability to work.

18. The phrase "continuing inability to work" is defined in subsection 94(2) of the SS Act. In Ms Jaeger's circumstances, it relevantly provides as follows:

    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) ...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.

    …

19. This definition is complex, but in essence, unless a person has a severe impairment, the person must have participated in a program of support. A severe impairment is defined in subsection 94(3B) of the SS Act as follows.

    A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

20. This means that in Ms Rebecca Jaeger's circumstances, if any of her impairments are assessed at 20 points under one of the impairment tables, that impairment will be a severe impairment. If none of Ms Rebecca Jaeger's impairments are severe impairments, she will be required to have participated in a program of support.

21. "Program of support" is defined in subsection 94(5) as follows.

    program of support means 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 of 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.

    …

22. Under subsection 94(3C) of the SS Act, a person has actively participated in a program of support if the person satisfies the requirements set out in the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).

23. It is not necessary to set out subsections 7(1) and 7(2) of the POS Determination. Suffice to write that these provisions specify persons must participate in programs of support for 18 months in the three years before lodging their claims for DSP.

24. Finally, Ms Jaeger's impairments must be sufficient to prevent her from doing any work independently of a program of support within the next two years.

    THE 13 WEEK QUALIFYING PERIOD

25. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Ms Rebecca Jaeger's eligibility for DSP in the 13 week period commencing on the day on which Ms Rebecca Jaeger's claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. Therefore, I must determine whether Ms Rebecca Jaeger qualified for DSP between 22 July 2015 and 21 October 2015.

26. In Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:

    In the Tribunal's consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues).

    This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

27. In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]-[33]:

    [31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within the period of 13 weeks following. Evidence, such as medical reports, that come into being after the period may still be relevant, but only in so far as they are referrable to the applicant's condition during the relevant period.

    [32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

    [33] … The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal's decision.

28. Therefore, in determining the eligibility of Ms Jaeger to receive DSP, I am confined to examining Ms Jaeger's impairments during the thirteen week claim period which is from 22 July 2015 to 21 October 2015. The date of the hearing was 28 July 2016 which is just over one year after the start of the claim period.

    THE CONCESSIONS OF THE RESPONDENT

29. Paragraph 20 of the Respondent's statement of facts and contentions reads as follows:

    20. The Secretary accepts that during the relevant period the Applicant suffered from a number of conditions including a spinal condition and benign paroxysmal positional vertigo. The Applicant therefore satisfies section 94(1 )(a) of the Act.

    THE ISSUES BEFORE THE TRIBUNAL

30. Given the Respondent's concessions, Ms Jaeger complies with subsection 94(1) paragraph (a) of the SS Act as she has impairments. Therefore, the first issue which I am required to decide is whether any of the impairments of Ms Jaeger have been fully diagnosed, treated and stabilised during the claim period. If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the impairment tables.

31. The second issue which I am required to decide is whether Ms Jaeger has a continuing inability to work pursuant to subsection 94(1) subparagraph (c)(i) and subsection 94(2) and attendant provisions of the SS Act. It will not be necessary to decide this issue if I find that Ms Jaeger's impairments do not attain an assessment of 20 points under the impairment tables.

    THE IMPAIRMENT TABLES

32. Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Ms Jaeger are worth twenty points under the impairment tables. This requires a few words of explanation.

33. In Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the impairment tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:

    [5] ...The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

    [6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

34. Importantly, impairments can only be assigned ratings under the impairment tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.

35. Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.

36. It is also important to appreciate that under sub-section 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. However, sub-section 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “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”.

    THE HEARING

37. Ms Jaeger attended the hearing via conference telephone. Ms Heithersay, who represented the Respondent also attended the hearing by conference telephone.

38. Ms Jaeger gave evidence by affirmation over the conference telephone.

39. Ms Jaeger said that owing to her back injury, she had been living with her parents on and off since 1999. In January 2015, she moved in with her parents on a permanent basis.

40. Ms Jaeger explained her L4-L5 back injury by saying that she is paralysed from her left to right hip. The injury has worsened and Ms Jaeger said that she has to lie down for most of the day.

41. Ms Jaeger was asked about her capacity to drive a car. Ms Jaeger said that in January 2015, she drove from Sydney to Gunnedah. After about three hours, she had to stop at Singleton for a break. The driving took five hours with her father driving behind her.

42. Ms Jaeger was asked about her letter to the Tribunal dated 16 June 2016, where she wrote that she drove two and a half hours to see her sports physiotherapist. Ms Jaeger confirmed that she drove to her physiotherapist in April 2016. The physiotherapist was located in Yamba which was about two and a half hours drive from her parent's home.

43. Ms Jaeger was asked whether she could move her neck and she said yes. Ms Jaeger said that she is susceptible to massive vertigo, and if she does have it, she is not able to turn her head left.

44. Ms Jaeger was asked whether the visits to the physiotherapist meant that her back injury was not fully treated and stabilised. Ms Jaeger said that the physiotherapy was for pain maintenance.

    CONSIDERATION

45. As Ms Jaeger has impairments, the first issue which I am required to decide is whether any of the impairments of Ms Jaeger have been fully diagnosed, treated and stabilised during the claim period. The claim period is from 22 July 2015 to 21 October 2015. If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the impairment tables.

    Vertigo

46. Ms Jaeger does suffer from benign paroxysmal positional vertigo, however, there is very little medical evidence about this impairment. Given the absence of evidence, I find that Ms Jaeger's vertigo was not fully diagnosed, treated and stabilised during the claim period.

    The Spinal Impairments

47. Ms Jaeger suffers from the following spinal impairments. For many years Ms Jaeger has suffered from a back injury at the L4/L5 level of her spine for which she had a laminectomy in August 2005. More recently, she has suffered from a lesion at the L3 level of her spine. From the limited medical evidence before me, it is not possible to separate these two injuries as both impact upon Ms Jaeger's spinal impairment.

48. From the medical evidence, I find that this spinal condition was fully diagnosed at the date of the claim for DSP.

49. The more difficult issue is whether these impairments were fully treated, stabilised and permanent during the claim period. I have found this a difficult issue to determine. 

50. The AAT first review also found this a difficult issue to determine. The AAT stated as follows.

    21.... In relation to the disorder at the L4/L5 level of her spine, Ms Jaeger underwent a laminectomy in August 2005. She has limited physiotherapy each year because she cannot afford to pay for physiotherapy and limited sessions are available to her under a health care plan each calendar year. The Tribunal accepts that Ms Jaeger's inability to afford physiotherapy amounts to a compelling reason for the purposes of subsection 6(6) of the Impairment Determination. In relation to the issue at the L3 level of her spine the Tribunal accepts that Ms Jaeger has at least a three year wait to consult with a neurologist.

    22.However, the Tribunal is also required to be satisfied that there is unlikely to be significant functional improvement to a level enabling Ms Jaeger to undertake work in the next two years. In this regard, the Tribunal notes the medical certificates provided by Dr Howell. Dr Howell has variously stated in those certificates that Ms Jaeger was experiencing temporary exacerbation of a permanent condition, with estimates of the length of time that exacerbation would have upon Ms Jaeger's ability to work or study being stated as three to 12 months (certificate dated 3 February 2015) and less than three months (certificate dated 20 August 2015). The Tribunal has no further medical evidence before it as to how long the spinal disorder is likely to impact upon Ms Jaeger's ability to work and study. Ms Jaeger told the Tribunal that she is expecting to obtain a further medical certificate next week certifying that she still remains unable to work or study. Whilst there is no current medical evidence before the Tribunal in that regard, the Tribunal accepts that it is likely that Ms Jaeger currently remains unable to work or study. In this regard the Job Capacity Assessment concluded that Ms Jaeger has a baseline work capacity of eight to 14 hours per week notwithstanding an assessment of ability to work 15-22 hours per week within two years with intervention.  Whilst there is a lack of definitive medical evidence before the Tribunal as to the expected duration of the spinal condition upon Ms Jaeger's ability to work or study for 15 hours or more per week, having regard to these matters and subsections 6(5), 6(6) and 6(7) of the Impairment Determination, the Tribunal is satisfied that on balance Ms Jaeger's spinal condition could be considered fully treated and fully stabilised as at the date of the claim. On that basis the Tribunal finds that the spinal condition could be considered permanent as at the date of the claim such that an impairment rating can be assigned.

1. The L4-L5 injury is a long-standing one dating back well before the 2005 laminectomy procedure. Since the AAT first review decision, Ms Jaeger has provided a Centrelink medical certificate by Dr Robin Diebold who is an orthopaedic surgeon, dated 30 March 2016. I recognise that this medical certificate is more than 5 months after the end of the claim period, however, when read in conjunction with the earlier certificates, it does add weight to the permanence of this impairment.

2. At the hearing, Ms Jaeger gave evidence of visiting a sports physiotherapist for pain management. I do not find this type of pain management inconsistent with this impairment being permanent within the meaning of the legislation.

3. After carefully examining the evidence I find that Ms Jaeger's spinal impairment was fully treated and stabilised during the claim period.

4. Therefore, Ms Jaeger's spinal impairment can be assessed under table 4 of the impairment tables.

5. The descriptors for a moderate functional impact – 10 points – and for a severe functional impact – 20 points – in table 4 are as follows.

   There is a moderate functional impact on activities involving spinal function.

   (1)The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

   (a)the person is unable to sustain overhead activities (e.g. accessing items overhead height); or

   (b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

   (c)the person is unable to bend forward to pick up a light object placed at knee height; or

   (d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

   There is a severe functional impact on activities involving spinal function.

   (1)       The person is unable to:

   (a)       perform any overhead activities; or

   (b)turn their head, or bend their neck, without moving their trunk; or

   (c)       bend forward to pick up a light object from a desk or table; or

   (d)       remain seated for at least 10 minutes.

6. In her evidence before me, Ms Jaeger said that as recently as April 2016, she had driven for two and a half hours, that is, she was able to sit for two and a half hours. Ms Jaeger also said in her evidence that she can move her neck.

7. In a medical report from Dr Gittoes dated 8 May 2015, Dr Gittoes writes that the main limitation is that Ms Jaeger can only bend forward at her hips about 45 degrees.

8. I find that Ms Jaeger's spinal impairments are not assessable as severe under table 4 of the impairment tables. She can sit, albeit with some discomfort for more than two hours. Ms Jaeger can move her neck to drive competently.

9. However, having regard to all of the evidence, I do find that Ms Jaeger's spinal impairment has a moderate functional impact. Accordingly, I assess her spinal impairment as moderate, that is at 10 points under table 4 of the impairment tables.

10. As Ms Jaeger's impairments are only assessable at 10 points under the impairment tables, I find that Ms Jaeger does not qualify for DSP.

11. As Ms Jaeger does not comply with subsection 94(1) paragraph (b) of the SS Act, it is not necessary for me to examine whether Ms Jaeger has an inability to work pursuant to subsection 94(1) subparagraph (c)(i) and attendant provisions of the SS Act.

    DECISION

12. The decision under review is affirmed.

I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO

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

Associate

Dated 26 August 2016

Date(s) of hearing	28 July 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services