Katiforis and Secretary, Department of Social Services (Social services second review)
[2020] AATA 156
•12 February 2020
Katiforis and Secretary, Department of Social Services (Social services second review) [2020] AATA 156 (12 February 2020)
Division:GENERAL DIVISION
File Number(s): 2019/3439
Re:Lilla Katiforis
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:S Taglieri SC, Member
Date:12 February 2020
Place:Hobart
The Tribunal affirms the application under review.
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Ms S Taglieri SC, Member
SOCIAL SECURITY – disability support pension – whether Applicant qualified for disability support pension at time of claim – whether Applicant’s conditions were fully diagnosed, treated and stabilised – whether Applicant had an impairment rating of 20 points or more under the impairment tables – whether impairments are severe – decision affirmed
Legislation
Social Security Act 1991 (The Act), the Social Security Administration Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables)
Active Participation for DSP Determination 2014Cases
Briginshaw v Briginshaw [1983] HCA 34REASONS FOR DECISION
Ms S Taglieri SC, Member
12 February 2020
Ms Katiforis applied for a disability support pension (DSP) on 25 January 2018. Her claim was rejected by the Respondent and a Member of the Social Services and Child Support Division (SSCSD) of the Tribunal on a tier 1 review.
On 14 June 2019, Ms Katiforis sought a tier 2 review of the refusal of her claim and the Tribunal conducted a hearing regarding the same on 28 January 2020.
Ms Katiforis appeared in person at the hearing and was supported and represented by her mother, Ms Balym. The Respondent was represented by legal counsel. The Tribunal received into evidence unopposed all the Section 37 Documents (T documents) which contained the historical information relevant to Ms Katiforis’ claim and, in particular, medical evidence from various treating doctors and psychologist Dr Josephs.
The Tribunal also received upon reliance of them by Ms Katiforis, a medical report from Dr Ahmed, which the parties agreed was prepared in around August/September 2019,[1] and a bundle of documents relating to training and study undertaken by Ms Katiforis.[2]
[1] Exhibit A1.
[2] Exhibit A2.
During the hearing, the Tribunal made enquiry about the documents relating to Ms Katiforis’ participation in a programme of support. Due to some ambiguity, the Respondent’s counsel was directed to make further enquiry and provide a submission about the accuracy of the period relied upon based on various records.[3] Submissions were received in writing on 30 January 2020, but are only material to the outcome of the review if Ms Katiforis persuades the Tribunal that she has at least 20 impairment points for her medical conditions.
[3] T72, pp 273-287, T documents; Annexure B of Respondent’s Statement of Facts, Issues and Contentions, 29 October 2019.
THE EVIDENCE AND PARTIES’ CONTENTIONS
The report of Dr Ahmed referred to at [4] of these reasons states that Ms Katiforis suffers from Carpal Tunnel Syndrome (CTS), a condition which is permanent and constitutes severe impairment attracting 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables). The report notes the restrictions Ms Katiforis is said to have in function, but Dr Ahmed does not address the criteria in table 2 of the Impairment Tables or offer clear reasoning for her conclusion that the criteria is satisfied. The report does not identify the time frame to which Dr Ahmed refers when she states that further treatment is not available to change the level of function Ms Katiforis has. I will return to this later.
Eligibility for disability support pension is governed by s 94 of the Social Security Act 1991 (the Act), the Social Security Administration Act 1999, the Impairment Tables and the Active Participation for Disability Support Pension Determination 2014 (the 2014 Determination). These provisions are very prescriptive and afford no discretion or room for departure from their strict requirements. Relevant to this review, the eligibility provisions collectively require that to find in Ms Katiforis’ favour, I must be satisfied that -
(a)Within 13 weeks of applying for DSP, Ms Katiforis suffered from medical conditions which were permanent, meaning fully diagnosed, treated and stabilised. Evidence received after the 13 week period should be taken into account if it is relevant to the medical conditions in the 13 week period. Accordingly, medical evidence as to Ms Katiforis’ conditions in the period from 28 January 2018 to about the end of April 2018 is to be considered.
(b)Each condition that is fully diagnosed, treated and stabilised attracts impairment points under the impairment tables.
(c)If any one condition attracts 20 impairment points alone, then providing there is evidence of continuing inability to work as required by s 94(2) there is no need to show participation in a programme of support as required by ss 94(2)(aa) of the Act.
(d)If the condition(s) attract impairment points of less than 20 individually but 20 or more combined, then all requirements of continuing inability to work must be demonstrated, including participation in a programme of support under the 2014 Determination.
Ms Katiforis contends that she suffers from three permanent conditions: CTS, chronic pain and Post Traumatic Stress Disorder (PTSD). She further claims that she has severe impairment (20 points) for CTS. She does not expressly address if the conditions of chronic pain and PTSD attract any particular impairment points under the Impairment Tables.
The Respondent on this review maintains its previous contentions, namely that Ms Katiforis does not have a severe impairment and must therefore satisfy all requirements of s 94(2). This includes participation in a programme of support if she demonstrates that her conditions attract 20 impairment points. It accepts that Ms Katiforis has been diagnosed with CTS and chronic pain, but says they are not fully treated and stabilised. Regarding PTSD, it says that the condition was not fully diagnosed in the qualification period, with diagnosis only being made afterwards by Dr Josephs in May 2019.
FINDINGS AND CONCLUSION
I am satisfied on the evidence that the three conditions of CTS, chronic pain and PTSD were fully diagnosed. There are many treating and rehabilitation records dating back to injuries Ms Katiforis suffered in a motor vehicle accident in 2001, which refer to musculo-skelatal injuries involving the wrist, neck and knee.[4] They also refer to CTS and chronic pain resulting from all the injuries.
[4] T4-T39, pp 112-170, T documents.
In relation to PTSD, the Tribunal had before it evidence that Ms Katiforis was obtaining treatment for symptoms of anxiety and driving-related avoidance behaviours following the accident in 2001,[5] and was treated by Ms Triffitt, a psychologist. The treating doctors’ reports also refer to a diagnosis of PTSD and medication being prescribed for this. Although there was no evidence of recent treatment by a psychologist or psychiatrist prior to the referral to Dr Josephs in 2018, there is sufficient material to persuade me that PTSD was fully diagnosed.
[5] T19-T23, pp 140-147, T documents.
In April 2018 Ms Katiforis was referred for further treatment.[6] The certificates and referral in evidence, read in context, make it sufficiently clear to me that the referral to the Royal Hobart Hospital (RHH) was for the temporary exacerbation of the chronic pain condition. This also accords with the statement in Dr Ahmed’s September 2019 report that the CTS is permanent and will not benefit from further treatment. The fact that she does not mention chronic pain or PTSD, in my view, leads to the strong inference that these conditions are still being treated and may lead to improved function. This is consistent with Dr Ahmed’s referral of Ms Katiforis to the RHH in 2018 and Dr Josephs’ 2019 report.[7] As such, I am not persuaded to the requisite standard of satisfaction required by law,[8] that chronic pain and PTSD were fully treated and stabilised during the qualification period. The conclusion that the chronic pain condition is not fully treated is also supported by evidence of a private referral to Dr Thani due to the long waiting periods at the RHH.[9]
[6] T55 and 58, pp 22 and 232, T documents.
[7] T54, pp 222, T documents; T2, pp 15-17, T documents.
[8] Briginshaw v Briginshaw [1983] HCA 34.
[9] T43, p 174, T documents.
Dr Josephs’ report of 16 May 2019 identifies that she has administered psychological tests and treatment aimed at assisting function.[10] The treatment was afforded after the qualification period and also demonstrates that the condition was not fully treated and stabilised at the relevant time.
[10] T2, pp 15-17, T documents.
I am satisfied that the CTS was fully diagnosed, treated and stabilised in the qualification period. This is based on a fair and contextual reading of Dr Ahmed’s referral to the RHH, her report of May 2018, her later 2019 report and the actions taken by her as demonstrated in the practice progress notes relevant to other conditions but not CTS.[11] I am satisfied that the CTS is fully treated having been subjected to surgery and physiotherapy with limited effect and with ongoing use of medications.
[11] T59, pp 233-251, T documents.
As I have concluded that the CTS is fully diagnosed, treated and stabilised, it is necessary to analyse the evidence to determine what value of impairment points should be assigned to this condition.
Ms Katiforis’ own statements[12] and training/study and earnings documents tendered during the hearing[13] provide evidence demonstrating that up until early 2018 and during the qualification period, Ms Katiforis had been either studying or undertaking some part-time work, and maintained a household assisted by her children. Her statements to the Job Capacity Assessor (JCA) are very similar to those which she gave evidence about at the prior hearing. In my view, they portray a consistent picture of a degree of functional impairment due to CTS.[14] Although I accept that she experienced limitations in functional activities and it takes longer for her to undertake them, I am not persuaded that she was so impaired that that she meets the descriptors for assigning 20 points under the Impairment Tables for this condition alone.
[12] [10] and [11] of the SSCSD decision, 16 May 2019.
[13] Exhibit A2
[14] T56, pp 224-5, T documents.
Although Dr Ahmed has purported to attribute 20 points for CTS, I am not satisfied that the “ticked” descriptions by Dr Ahmed reliably correlate with the evidence before me.[15] At most, I consider the evidence demonstrates that Ms Katiforis attracts 10 points under table 2. Her evidence to the Tribunal in the tier 1 review is consistent with the activities she has been undertaking on a part-time and paced basis. I do not find Ms Katiforis to be inconsistent; rather the conclusions of Dr Ahmed are not justified on all the evidence before me.
[15] T2, p13, T documents.
In closing submissions, Ms Katiforis’ representative stated that the JCA assessment was biased, but I see no basis for concluding this. I have reached my own view about the extent of impairment caused by CTS based on Ms Katiforis’ evidence corroborated by the evidence of completed studies and work undertaken. Her limits are more properly objectively described as moderate, not severe.
Because I have concluded that Ms Katiforis does not have 20 points under a single impairment table or combined tables based on all three conditions, it is unnecessary for me to consider whether Ms Katiforis has demonstrated that she has a continuing inability to work as required by ss 94(2)(aa) of the Act. Regrettably, Ms Katiforis’ permanent impairment from the rateable CTS condition does not reach the 20 point threshold necessary for her to be eligible for DSP.
In conclusion, the refusal of the January 2018 claim for DSP was correct and the decision of the SSCSD is affirmed but for different reasons.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri SC, Member
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Associate
Dated: 12 February 2020
Date(s) of hearing: 28 January 2020 Applicant: In person
Representative for the Applicant
Ms Jeanne Balym Solicitors for the Respondent: Ms Sarah Dinkha
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