Katovic and Secretary, Department of Social Services (Social services second review)
[2018] AATA 2600
•3 August 2018
Katovic and Secretary, Department of Social Services (Social services second review) [2018] AATA 2600 (3 August 2018)
Division: GENERAL DIVISION
File Number: 2017/3332
Re:Ruzica Katovic
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Richard West, Member
Date:3 August 2018
Place:Melbourne
The Tribunal affirms the decision under review.
...................[sgd]...............................................
Richard West, Member
Catchwords
SOCIAL SECURITY – refusal of disability support pension – whether conditions rate 20 points or more under Impairment Tables – lower back pain – asthma - decision affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999Cases
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Covenden and Secretary, Department of Social Services [2018] AATA 353
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014REASONS FOR DECISION
Richard West, Member
3 August 2018
BACKGROUND
This matter concerns the refusal of the Disability Support Pension (DSP) to the Applicant and is a Second Tier Review of that decision by the Administrative Appeals Tribunal, General Division (Second Tier Review).
The relevant history of the matter is as follows:
·The Applicant made her original application for DSP on 11 March 2016;
·Centrelink assessed and refused the application on 31 July 2016 (Initial Decision);
·A Departmental authorised review officer (ARO) affirmed this decision on 23 November 2016;
·The Applicant requested a review of the Initial Decision by the Administrative Appeals Tribunal (Social Services & Child Support Division) (First Tier Review) on 6 January 2017;
·The First Tier Review affirmed the Initial Decision on 28 April 2017;
·The Applicant applied for a Second Tier Review of the Initial Decision on 21 March 2017;
·I conducted the Second Tier Review on 23 May 2018.
In the proceedings the Applicant was self-represented. The Secretary was represented by Mr Henderson, a solicitor with the Department of Human Services.
LEGISLATION
I have had regard to the following relevant legislation in making this decision:
·Social Security Act 1991 (the Act);
·Social Security (Administration) Act 1999 (the Administration Act);
·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables): a determination made by the Minister under s.26(1) of the Act which came into effect on 6 December 2011;
·Social Security (Active Participation for Disability Support Pension) Determination 2014; and
·Administrative Appeals Tribunal Act 1975.
QUALIFYING PERIOD
A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter. This is called the qualifying period.[1]
[1] See ss. 37, 42 and clauses 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999
In this case the qualifying period commenced on 11 March 2016 and ended on 10 June 2016.
In assessing whether a condition has stabilised and is likely to persist for the future the Tribunal must look at the situation during the qualifying period, having regard to the evidence available at the time. Evidence of deterioration in the claimant’s condition subsequent to the qualifying period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the claimant’s condition during the qualifying period. [2]
[2] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Re Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33] and Re Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].
DSP QUALIFICATION
To qualify for a DSP an applicant must satisfy the requirements set out in s.94(1) of the Act as assessed during the qualifying period.
In essence s.94(1) requires that:
·the Applicant have a physical, intellectual or psychiatric impairment;
and
·the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years;
and
·the Applicant has a severe impairment (an impairment rating at least 20 points on a single Impairment Table); or
·the Applicant’s impairments together rate at least 20 points on the Impairment Tables;
and
·the Applicant has a continuing inability to work; or
·the Secretary is satisfied that the Applicant is participating in the supported wage system.
Section 94(2) of the Act provides that a person has a ‘continuing inability to work’ because of an impairment if the person has actively participated in a program of support and the impairment is of itself sufficient to prevent the person from doing any work or undertaking a training activity independently of the program of support within the next two years.
Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.
The Respondent does not dispute that the Applicant has a physical, intellectual or psychiatric impairment. The Applicant does not claim to have been participating in the supported wage system and does not dispute that she did not participate in a program of support for at least 18 months in the three years immediately prior to the date of claim.
Accordingly, the Applicant’s claim for DSP depends on the threshold question whether her impairment was fully diagnosed, fully treated and fully stabilised during the qualifying period; attracted an impairment rating of at least 20 points on a single Impairment Table and was likely to persist for more than two years.
THE APPLICANT’S IMPAIRMENTS
The Tribunal in the First Tier Review reviewed the medical evidence and identified that the Applicant claimed to be suffering from the following conditions:
·a lower limb condition involving chronic pain following surgery for a fracture of the left ankle;
·lower back pain;
·asthma;
·left tibial enchondroma;
·gastric reflux;
·anxiety and depression; and
·left wrist pain.
APPLICANT’S EVIDENCE
The Applicant gave evidence that following fusion surgery to her left ankle she experienced chronic pain which she could not control through medication. She said that she attended exercise classes, Pilates and hydrotherapy to improve her lower back and alleviate pain. However, she stopped all such activity when in April 2016 she was diagnosed with a tumour in her lower left leg (left tibial enchondroma) because she was concerned that the exercise might exacerbate her condition.
She said that her asthma caused her to cough abnormally and that she had tried different medication, with limited success. She stated that she often loses her voice and is embarrassed when her coughing causes some incontinence.
She said that her gastric reflux limits her ability to take oral medication for her chronic pain and asthma. This affects her ability to eat.
She said that she first suffered left wrist pain in 1997 while working at the Royal Melbourne Hospital when she attempted to separate a vacuum hose. As a result of the injury she ceased work at the hospital and took up work in the security industry. She said that the injury has resulted in a weakness in her left wrist ever since and that her wrist goes numb at night, requiring her to sleep in the sitting position.
She said that since 2015 she has sought assistance from a psychologist named Joe, who had helped her cope with insomnia.
She gave evidence that for a number of years she has acted as a carer for a Mrs Petrovic, an elderly woman she knows and for whom she has received a carer’s allowance. She said that she talks to Mrs Petrovic nearly every day by telephone and attends her home 2 or three times each week for up to three hours. She said that Mrs Petrovic is very obstinate and independent and does not require her assistance with cooking, toileting or dressing. She said that she assists Mrs Petrovic in other ways; for example by arranging cleaning services, getting heavier things for her, taking her out for coffee and attending local clubs with her.
The Applicant gave evidence that she requires elbow crutches to be able to walk because of her lower limb condition. She said that she is able to drive an automatic car and can use a computer. She said that she does not use public transport because the station is about one kilometre from her home and it is too far for her to walk, although she could use public transport if she was able to sit down. She said that she can only walk short distances with her crutches but is able to get around the supermarket by using the trolley to support herself.
Under cross-examination she accepted that she was able to walk without assistance from another person and did not need any help to get out of her car which enabled her to shop at the supermarket without assistance.
SUBMISSIONS
Before making her submission, the Applicant was invited to address the Tribunal about the application of the factors in the Impairment Tables to her conditions. She was provided with a copy of the Impairment Tables and the appropriate Tables were identified for her. She was offered an adjournment to consider the Impairment Tables before making her submissions. She declined the offer of an adjournment and did not address the specific aspects of the Impairment Tables in her submission.
Mr Henderson referred the Tribunal to the Secretary’s Statement of Facts, Issues and Contentions lodged prior to the hearing, and relied on that statement as setting out the Respondent’s position.
CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS
In conducting the Second Tier Review I have had regard to the documents produced to the Tribunal by the Respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) and to the evidence of the Applicant.
Lower Limb Condition
The Respondent accepts that the Applicant’s lower limb condition was fully diagnosed, fully treated and fully stabilised during the qualifying period.
The Respondent’s submission is that there is no evidence (self-reported or medical) that the Applicant meets the 20-point severe impairment descriptors in Table 3 of the Impairment Tables which require that a person be unable to:
·walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance;
·walk (or mobilise in a wheelchair) from a carpark into a shopping centre or supermarket without assistance; or
·stand up from a sitting position without assistance.
The Respondent submitted that the Applicant’s impairment must be assessed under Table 3 with the Applicant using her crutches; and that only a single rating should be assigned as the Applicant’s left ankle and chronic pain conditions result in a combined impairment to her lower limb. I accept this submission.
The Applicant’s own evidence established that she did not satisfy the criteria set out at [27] above. In addition, the Job Capacity Assessment (JCA) conducted on 27 July 2016 concluded that the Applicant’s lower limb condition caused a moderate impact upon daily activities and attributed a rating of 10 points to the impairment. The medical report of Dr Asthana dated 13 December 2016[3] noted in relation to the lower limb condition that the Applicant has only been able to walk short distances with crutches for the last 18 months and that due to constant pressure on both forearms her arms have become painful.
[3] T68 at page 135
Dr Muzzafar noted in his report of 8 November 2016[4] that the Applicant can mobilise without physical support of another person, albeit with crutches. The medical evidence does not establish that the Applicant satisfies the criteria set out at [27] above.
[4] T64 at page 116
The Respondent sought to rely on the fact that the Applicant has been in receipt of the carer’s allowance since 26 November 2009 as a ‘strong indicator’ that the Applicant’s lower limb condition does not cause a 20-point impairment under Table 3. This submission relied on the requirement in s.954A of the Act that a person must provide daily care and attention for at least 20 hours per week to qualify for a carer’s allowance. The Applicant’s evidence indicated that she did not provide the level of care stipulated. The Tribunal considers that the Applicant’s evidence regarding the care and support she provides to Mrs Petrovic lends weight to the conclusion that her lower limb condition does not have a severe functional impact on her activities.
On the basis of the evidence, I am not satisfied that the Applicant’s lower limb condition is indicative of a 20-point severe impairment under Table 3 of the Impairment Tables.
Lower Back Pain
The Respondent submits that the Applicant’s lower back pain resulting from a compression fracture of the L3 vertebra and spondylolisthesis was not fully treated and fully stabilised during the qualifying period.
The condition was diagnosed in February 2015[5] but there is no medical evidence regarding treatment prior to or during the qualifying period. Dr Horsley noted in his report of 16 August 2017[6] that there had been no active management of the Applicant’s back condition. Dr Paul’s report of 13 February 2018[7] notes that the Applicant was referred for physiotherapy in November 2017 but it was unknown whether she attended.
[5] T29 at page 55
[6] ST1 at page 249
[7] ST1 at page 260
On the basis of this evidence, I am not satisfied that the Applicant’s lower back pain was fully treated or fully stabilised during the qualifying period and accordingly it cannot be assessed under the Impairment Tables.
Asthma
The Respondent submits that the Applicant’s asthma was not fully diagnosed, fully treated and fully stabilised during the qualifying period.
The Applicant gave evidence that her asthma caused her to cough abnormally and that she had tried different medication with limited success.
The medical evidence establishes that the condition was under investigation in July 2016. Dr Jayaram reported on 1 July 2016[8] that he suspected that the Applicant’s chronic cough was post-viral and exacerbated by rhinitis and gastroesophageal reflux. The report states that Dr Jayaram had organised further testing to confirm a diagnosis of asthma. Dr Jayaram’s subsequent report of 8 September 2016[9] confirmed a diagnosis of asthma and indicated that he would review the Applicant’s progress on Symbicort after a further three months.[10]
[8] T44 at page 79
[9] T53 at page 96
[10] A subsequent report of 2 February 2017 noted that her condition had improved with treatment – see T71 at page 167
It is clear from this evidence that the Applicant’s asthma was not fully diagnosed, fully treated or stabilised until after the qualifying period, and accordingly it cannot be assessed under the Impairment Tables.
Other Conditions
The Respondent submits that there is a lack of evidence that the Applicant’s other conditions, namely anxiety/depression, left tibial enchondroma, gastric reflux and left wrist pain, were fully diagnosed, treated and stabilised during the qualifying period.
The Applicant first saw a clinical psychologist in April 2017,[11] more than a year after the qualifying period. I am satisfied on this basis that her anxiety/depression was not fully diagnosed during the qualifying period.
[11] T71 at page 166
The Applicant had x-rays on her left knee on 5 April 2016. Dr Siwach provided a preliminary diagnosis as favouring a chondroid lesion over a medullary infarct, though it most likely represents a benign enchondroma.[12] The diagnosis of the condition was subsequently confirmed as left tibial enchondroma by an orthopaedic surgeon, Mr Pang, on 8 September 2016.[13] This diagnosis was made after the qualifying period, and the Applicant was told that no further treatment was needed apart from follow up x-rays to monitor the condition. On this basis, I am satisfied that the condition was not fully diagnosed during the qualifying period; and even if it had been there is no basis to find that the condition gave rise to a severe impairment.
[12] T38 at page 71
[13] T54 at page 97
I have reviewed the medical evidence and the Applicant’s oral evidence. I am satisfied that there is no basis to support a finding that either of the Applicant’s conditions of gastric reflux or left wrist pain gave rise to a severe impairment during the qualifying period.
DECISION
On the basis that the evidence before the Tribunal does not establish that any of the Applicant’s conditions meet the 20-point requirement on the Impairment Tables, I do not need to consider other requirements of the Act. I affirm the decision under review.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Richard West, Member
........................[sgd]................................................
Associate
Dated: 3 August 2018
Date of hearing: 23 May 2018 Applicant: Self-represented Advocate for the Respondent: James Henderson - Department of Human Services
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