JULIE SINCLAIR and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 606

[2012] AATA 606  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/1653
Re	JULIE SINCLAIR
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	10 September 2012
Place	Brisbane

The Tribunal affirms the decision under review.

....................[Sgd]................................

Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant time-frame for assessment – Physical impairment in thoracic spine and right foot – Impairment rating of 15 points under Table 20 of Schedule 1B – Applicant not qualified for disability support pension – Decision under review affirmed 

LEGISLATION

Social Security Act 1991 (Cth) s 94, Sch 1B

Social Security (Administration) Act 1999 (Cth) Sch 2

REASONS FOR DECISION

Mr R G Kenny, Senior Member

10 September 2012

BACKGROUND

1. On 17 March 2011, Julie Sinclair spoke with a Centrelink officer about the payment of the disability support pension which is payable under the terms of the Social Security Act 1991 (Cth) (the Act). Ms Sinclair made a formal claim for the disability support pension on 28 March 2011. This was rejected by a Centrelink delegate on 11 May 2011. On 20 September 2011, an authorised review officer affirmed the decision as did the Social Security Appeals Tribunal (SSAT) on 23 March 2012.

   LEGISLATION, ISSUES AND SUBMISSIONS

2. The qualifications for a disability support pension are set out in s 94 of the Act. It is common ground that Ms Sinclair meets the age and residency requirements of that provision and has a physical impairment to her thoracic spine and right foot. The remaining requirements in s 94 of the Act are:

   ·whether Ms Sinclair has an impairment rating of 20 points or more, which is calculated under the Impairment Tables in Schedule 1B of the Act, as required by s 94(1)(b) thereof; and, if so

   ·whether she has a continuing inability to work as required by s 94(1)(c)(i) of the Act.

3. To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim.[1] Ms Jasmine Forsythe, for the respondent, submitted that because Ms Sinclair's formal claim was made with 14 days of her contact with Centrelink on 17 March 2011, the claim is taken to have been made from that date. In Ms Sinclair's case, this means that the 13 week claim period is from 17 March 2011 until 16 June 2011 (the relevant period).

   [1] See Schedule 2, cl 3 and cl 4 of the Social Security (Administration) Act 1999 (Cth).

4. The conditions nominated by Ms Sinclair's treating general practitioner, Dr Michael McFall, in a report dated 28 March 2011 in support of her application, were plantar fasciitis right foot and facet joint pain/OA in nominated joints of the thoracic spine. Under Table 20 of Schedule 1B of the Act, the Centrelink officers and the SSAT allocated a 15 point impairment rating to Ms Sinclair in relation to pain associated with those conditions. No further allocation was made for any other condition. As the impairment rating was less than the threshold of 20 points required under s 94 of the Act, Ms Sinclair’s claim was rejected.

5. The Introduction to Schedule 1B of the Act provides guidance in the application of the various Tables which it contains. Part of that Introduction requires that a rating is only to be assigned to a condition which is considered to be permanent in that it is a “fully documented, and diagnosed condition which has been investigated, treated and stabilised” and is more likely than not to persist for more than two years. Ms Forsythe conceded that Ms Sinclair suffered from conditions additional to those noted above. However, she submitted that only her thoracic spine and right foot conditions were fully diagnosed, treated and stabilised such that an impairment rating could be allocated to them. She submitted that the decision under review was based on two Job Capacity Assessment reports in relation to Ms Sinclair's impairment for the two nominated conditions and that these should be adopted. She also submitted that Ms Sinclair did not satisfy the incapacity for work requirements of s 94(2) of the Act.

6. Ms Sinclair's submission was that she is now severely incapacitated from her health problems and is no longer capable of engaging in employment. She submitted that she meets the qualification criteria for the disability support pension.

   CONSIDERATION

7. Ms Sinclair suffers from a range of health concerns. These include her thoracic spine and right foot conditions as well as those described as nerve impingement in the right hip, a cervical spine problem, an inoperative valve in the vein of the right calf and depression.

8. Dr McFall diagnosed Ms Sinclair's hip condition in a medical certificate dated 18 April 2011. He described the prognosis as "uncertain" and Ms Sinclair said that she was still awaiting a specialist appointment for the condition at that time; this was scheduled for 4 June 2012. Ms Sinclair also underwent an MRI arthrogram of her right hip on 20 June 2011 and the associated report referred to "mild tendonitis". In relation to her right leg, vascular surgeon, Dr Wallace Foster, completed a report on 5 March 2010 in which he diagnosed "uncomplicated upper calf varicose veins due to incompetence in the right saphenofemoral junction and long saphenous vein". He denied the need for treatment other than the wearing of a support stocking if she experienced any pain. Ms Sinclair was diagnosed with an "adjustment disorder” in partial remission by psychiatrist, Dr Michael Likely, when he saw her in July 2008. However, psychiatrist, Dr Harvey Whiteford, was able to write, in a report dated 2 July 2009, that Ms Sinclair's mental state examination at that time was normal. Dr McFall's progress notes for 23 May 2011 describe Ms Sinclair as having depression and he prescribed medication in the form of Zoloft. Another general practitioner, Dr Jennifer Du, completed a certificate on 29 July 2011 in which she also identified depression, which she described as "temporary". Dr Du repeated that description in a report dated 26 August 2011. On 30 November 2011, Ms Sinclair was referred for psychiatric evaluation to Dr W Wade.

9. For her neck condition, Ms Sinclair was referred to a pain management clinic in June 2011 by Dr McFall. The clinic wrote to Dr McFall on 22 June 2011 advising that Ms Sinclair was not within the clinic's area and recommending imaging of her neck and a referral to the Royal Brisbane Hospital Service. An x-ray report, dated 10 June 2011, described degenerative changes in Ms Sinclair's cervical spine. In each of her reports of July and August 2011, Dr Du also identified Ms Sinclair's neck pain and described this as "temporary”.

10. A report from the Gold Coast Hospital Pharmacy, dated 1 September 2011, identified various forms of “Tramadol”, “Amitriptyline” and “Paracetamol” medications as well as Zoloft for Ms Sinclair in relation to pain, mood and anxiety.

11. On the basis of that summary of references to Ms Sinclair's health concerns, I am satisfied that the only conditions that were fully diagnosed, treated and stabilised in the relevant period were her thoracic spine and right foot conditions. That was the conclusion reached in each of the Job Capacity Assessment (JCA) Reports in evidence. These were completed on 5 May 2011 by Lana Stiller, registered occupational therapist, and on 6 June 2011 by Ms Stiller and registered nurse, Leanne Steele. Both of those JCA reports were completed in the relevant period.

12. In her evidence, Ms Sinclair said that, currently, her main problem is with her back and right foot from which she experiences pain on activity. She described pain associated with her other conditions as well. The pain stops her from doing anything active. She takes medication to assist her in getting to sleep and this prevents her from driving. She also takes anti-depressant medication. She shops on most days, utilising a taxi service to attend the shopping centre. Frequent shopping allows her to purchase small amounts which she is then able to carry home on her own. She needs a neighbour to help her in climbing the stairs at the home. Ms Sinclair described dressing as a slow procedure. Ms Sinclair initially injured her back when working as a nurse in 2006 and, after a period of recuperation, she took up a position with Big W as a customer greeter, which she was able to do because she was permitted to sit on a stool at the entrance to the store. Initially, Ms Sinclair said that she worked until March 2011 but agreed that she had continued until June or July 2011.

13. From her description of limitations and restrictions, Ms Sinclair's capacity to function has been reduced since the relevant period. In her evidence, she agreed that this was so. That is reflected in the functional impact summaries in the JCA reports which describe Ms Sinclair as having experienced less difficulty with her pain and mobility during the relevant period. These describe her as being independent in self-care activities; as requiring rest after 30 minutes of carrying out household activities; as requiring rest after walking for more than 20 minutes or standing for 30 minutes; and as being able to negotiate two flights of stairs with a relatively light load of shopping. In the relevant period, Ms Sinclair was still working.

14. I am satisfied that the JCA reports correctly outline Ms Sinclair’s capacities during the relevant period. In each report, reliance was placed on the terms of Table 20 of Schedule 1B of the Act, which relates to pain. I accept the JCA assessor's opinion that the general terms of that Table are more appropriate for Ms Sinclair's impairment than any of the system-specific tables in Schedule 1B. Table 20 of Schedule 1B reads:

    TABLE 20.       MISCELLANEOUS ‑ MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system‑specific Tables, Table 20 can be used. Double‑counting of a particular loss of function, by the use of more than one Table, must be avoided.

Rating

Criteria

NIL

Controlled hypertension

Malignancy in remission with a good to fair prognosis

Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.

TEN

Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work‑related tasks. There is minimal effect/impact on work attendance.

Hypertension that is difficult to control despite intensive therapy but without end‑organ damage

Potentially life‑threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis

Heart/Liver/Kidney transplants ‑ well controlled (well functioning) with only mild systemic symptoms.

FIFTEEN

Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self‑care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work‑related tasks and/or attend work. Full‑time work would still be possible.

Potentially life‑threatening condition which is currently interfering with daily activities but self‑care is unaffected.

TWENTY

More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work‑related tasks. Symptoms may cause prolonged absences from work.

THIRTY

Very severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self‑care may be required. Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).

Heart/Liver/Kidney transplants ‑ poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks

Malignant hypertension ‑ severe, uncontrolled

Inoperable, symptomatic and life‑threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan

FORTY

Major restrictions in many everyday activities. Capacity for self‑care is restricted, leading to dependence on others. No residual work capacity

1. Each JCA assessor allocated an impairment rating of 15 points under that Table. I am satisfied that the description at that level is appropriate for the permanent conditions suffered by Ms Sinclair during the relevant period. That is less than the threshold of 20 points as provided for in s 94(1)(b) of the Act. As Ms Sinclair did not satisfy the terms of s 94 of the Act during the relevant period, she was not qualified for disability support pension.

   DECISION

2. The Tribunal affirms the decision under review.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

.....................[Sgd]......................................

Associate

Dated 10 September 2012

Date of hearing	28 August 2012
Applicant	In person
Advocate for the Respondent	Jasmine Forsyth