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

[2017] AATA 1613

KBDF and Secretary, Department of Social Services (Social services second review) [2017] AATA 1613 (4 October 2017)

Division:GENERAL DIVISION

File Number(s):      2016/4591

Re:KBDF  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:4 October 2017

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether the applicant has physical, intellectual or psychiatric impairments – whether the applicant's conditions were fully diagnosed, treated and stabilised – mental health condition – fibromyalgia – back pain – upper limb condition – lower limb condition – thyroid condition – whether the impairments attract 20 points or more – Impairment Tables – decision affirmed

LEGISLATION
Social Security (Administration) Act 1999 (Cth) Sch 2, s 42
Social Security Act 1991 (Cth) s 94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A Poljak

4 October 2017

1. The applicant, seeks review of a decision made by the Social Security and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) on 28 July 2016. The SSCSD affirmed a decision made by the Department of Social Services (“the Department”) on 20 February 2016, and affirmed by an Authorised Review Officer (“ARO”) on 29 April 2016, refusing the applicant’s claim for the disability support pension (“DSP”) which was lodged on 31 December 2015.

2. The applicant’s claim for DSP was rejected on the basis that she did not satisfy the eligibility criteria set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

3. For the applicant to qualify for DSP, she had to satisfy these criteria on 31 December 2015, when she applied for the DSP, or within the following 13 weeks, that is, by 30 March 2016 pursuant to s 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”).

4. The Secretary contends that the medical evidence does not support a finding that the applicant was qualified for DSP during the relevant period.

5. The Secretary accepts that the applicant suffered from a number of conditions during the relevant period. She therefore satisfies section 94(1)(a) of the Act. The issues to be determined in these proceedings are whether the applicant’s conditions rate 20 or more points under the Impairment Tables and whether she has a continuing inability to work as defined in the Act.

   IMPAIRMENT TABLES

6. The first issue for determination in these proceedings is whether the applicant’s conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

7. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in s 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. 

8. Subsections 6(3) and 6(4) provide that an impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years.

9. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

10. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean:

    (a)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 two years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)     significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.

11. Reasonable treatment is defined in subsection 6(7) as treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

    Mental health condition - mixed anxiety and depressed mood

12. The Introduction to Table 5 of the Impairment Tables provides (inter alia):

    The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). (Emphasis added)

13. The Secretary accepts, and I agree, that the applicant’s mental health condition was fully diagnosed, fully treated and fully stabilised during the qualification period. This is supported by the evidence of Mr S Anthony, a clinical psychologist, Dr A Sharah, psychiatrist, Dr Mehmet, Dr Sanki, Dr G McLean, psychiatrist and Dr K Attia-Soliman, psychiatrist.

14. Therefore, the issue to be determined in these proceedings is the proper impairment rating to be applied to the applicant for her mental health condition.

15. In a medical report dated 24 September 2014, Dr Mehmet recorded that the medical condition of “anxiety/depression” was generally well managed and caused minimal or limited impact on the applicant’s ability to function.

16. Mr S Anthony reviewed the applicant on 30 April 2015 and says in his report dated 18 May 2015, that the applicant “experiences a high level of nervous tension. Frustration tolerance is low. The anxiety interferes with interpersonal relationships, including interaction with family members. Mood is depressed. She lacks interest and motivation. She is socially isolated. She reports in neglect of self-care such as such as regular showering. She feels miserable and dejected and at times experiences suicidal ideation”.

17. In a report dated 24 July 2015, Dr Sharah appears to have undertaken a mental health assessment of the applicant and notes the following:

    (a)the applicant has given up independent lifestyle to live with her parents. Domestic activities are left mostly to her parents and the applicant requires prompting to wash and dress properly;

    (b)the applicant is socially isolated; she is no longer able to enjoy physical exercise due to the conditions. She has fear of travel and repeat of previous accident;

    (c)the applicant’s interpersonal relationships are greatly restricted due to her pain and depression. This makes her unwilling to engage in social activities with her friends;

    (d)The applicant has been unable to continue with her studies due to her depression, pain and side-effects from pain medication which affect her concentration;

    (e)the applicant does not want to engage in activities that are absolutely necessary and her mother complains of angry outbursts and it is suggested that she perform activities; and

    (f)the applicant’s “work capacity is limited due to pain, medication, restriction of her life activities and ambitions”.

18. In the Job Capacity Assessment Report dated 19 February 2016 (“JCA”), it is recorded that the applicant reported being able to drive and that she “maintains contact with her children who helped her to compile medical information”.

19. On 18 March 2016 and on 15 April 2016, the applicant supplied the Department with a statement and evidence in regards to an assessment for her entitlement for the Family Tax Benefit. The evidence indicates that she had care for her 15-year-old son during the school holidays of December 2015 to January 2016. The evidence shows that during this period she attended medical appointments with her son, took him grocery shopping and took him to the movies.

20. Before the SSCSD, the applicant told the Tribunal that she lived with her parents. She said she was able to look after herself but relied upon her mother to do the cooking and remind her to have a shower or keep an appointment (for example). She said that she did not see her friends often and would sometimes go to the gym. At hearing the Tribunal noted that the applicant did not display any disordered thought processes and was able to concentrate to respond to the Tribunal’s questions.

21. Dr Greg McLean reviewed the applicant on 25 July 2016. In a report of the same date, Dr McLean opined that the applicant’s depression “has significantly and adversely affected all aspects of her life and functioning”. In a report dated 19 December 2016, Dr McLean recorded the following:

    “I last reviewed her today 19 December 2016. She stated that her mood was self -rated as 2/10 (where 10 is normal). She had one or two thoughts of wanting to give up on her life. She could not enjoy her recent birthday. She became angry and snapped at her friends. Overall there is nothing that she can enjoy. She does not want to see people. She feels people are critical of her. She feels that she argues with friends, her children, family…

    She feels that she can’t make decisions. Her parents (with whom she lives with) make decisions eg. go to the doctor eg. to take medication eg. parents prompt her about hygiene. Parents often accompany her to shops. She feels that her memory has been adversely affected…feels her energy as very poor, fatigued.. She feels always fatigued. She can travel but it has become difficult because of the steps and muscular pain.

    Concentration is very poor… She feels it is pain and the depression was affecting her concentration.”

22. While the evidence of Dr McLean may assist the applicant with any future claim for the DSP, it is of little assistance in these proceedings as the evidence referred to above relates to the applicant as she was in July and December 2016; which is outside of the relevant period.

23. At hearing, the applicant said that nothing has changed and that her conditions are not going to get any better. During the school holidays in December 2015 to January 2016, she said that she did take her son to the doctor but he may have gone to the shops, McDonald’s and movies with her parents or brother. She could not recall if she went along. The applicant said that her son was a “very demanding child” and that she went out of her way to make him happy. She said that her family helped her take care of him. She said that her son has “now left because he wasn’t getting the care from his mum”. The applicant confirmed that she could drive “if she had to” but she would prefer not to go anywhere. At hearing she did not display any disordered thought processes and was able to concentrate for a substantial period of time. The applicant advised that a lot of time went into preparing and planning (with assistance) for the hearing; I have no reason to dispute this.

24. In regards to awarding an impairment rating, it is important to note that section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each Table and a rating cannot be assigned between consecutive impairment ratings. Significantly, s 11(1)(c) provides:

    if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. (Emphasis added)

25. I have considered the descriptors in Table 5 of the Impairment Tables in regards to mental health function, for the ratings of 10 and 20 points. These ratings are for a moderate and a severe impact on function. Having regard to the evidence and the descriptors applicable for a severe functional impact, I am not satisfied that the applicant has severe difficulty with most of the descriptors. Particularly in regards to concentration and task completion; behaviour, planning and decision-making and self-care and independent living. She has moderate difficulty with these functions. Accordingly, I find that a rating of 10 impairment points for this condition is appropriate.

    Back pain - fibromyalgia

26. The Secretary accepts, and I agree, that the applicant suffered from ‘widespread’ fibromyalgia. This condition was full diagnosed, treated and stabilised during the relevant period which is supported by the evidence of Dr Hameed, Dr Michael Tjeuw, rheumatologist and Dr Mehmet. The issue in contention is the proper impairment rating to be assigned in respect of the impairment arising from this condition.

27. There is limited medical evidence pertaining to the functional impact of this condition during the relevant period. Previous investigations from several years earlier detail some functional impairment of the spine. In an assessment dated 21 November 2013, Ms Ling-Yun Wang, rehabilitation consultant/occupational therapist, noted that the applicant was unable to “bend to touch her mid-thigh level with both hands”. Ms Wang also observed that the applicant “is avoiding twisting of her back by turning the whole body using leg movements”.

28. In a medical report dated 24 September 2014, Dr Mehmet recorded that the medical condition “fibromyalgia- neck back pain” was generally well managed and caused minimal or limited impact on the applicant’s ability to function.

29. The SSCSD observed that the applicant was able to look in all directions, was able to bend forward to pick up was on the table in front of her and did not need assistance to get up out of her chair.

30. Dr Liew, rheumatologist, has provided a report dated 4 July 2016. He notes that the applicant reported a “severe exacerbation of widespread pain, in particular to their axial skeleton, both shoulders, arms, hips [and] lower limbs”. He noted that the applicant had “great difficulty sustaining any activities are more than 10 to 15 minutes at a time and that she had difficulty standing/walking for more than 15 to 20 minutes at the time and difficulty with bending over, turning, exerting any forceful stress to the spine, such as bending and lifting”. While this may assist the applicant with any future claim for the DSP, it is of little assistance in these proceedings as the evidence falls outside of the relevant period. It is important to note that Dr Liew reports an exacerbation of symptoms after the relevant period.

31. Based on the available evidence I am not satisfied that during the relevant period this condition had a functional impact on activities involving spinal function. The most contemporaneous medical evidence to the relevant period, evidences minimum or limited impact on the applicant’s ability to function. Accordingly I find that a rating of zero impairment points for this condition is appropriate.

    Upper limb condition – left shoulder bursitis and fibromyalgia

32. The Secretary accepts, and I agree, that the applicant suffered from left shoulder bursitis and fibromyalgia during the relevant period.  This condition was full diagnosed, treated and stabilised during the relevant period which is supported by the evidence of Dr Michael Tjeuw, rheumatologist, Dr Sanki and Dr Mehmet. The issue in contention is the proper impairment rating to be assigned in respect of the impairment arising from this condition.

33. In a report dated 6 July 2015, Dr Sanki wrote that the applicant could not “pickup one litre carton of liquid and she was not able to pick up bulky objects with her hands. Patient had problems in unscrewing lids on the bottles”. However, this report is inconsistent with instances of self-reporting by the applicant, indicating minimal functional impairment.

34. Before the SSCSD the applicant reported that “she is able to do up big buttons, use utensils, write with a pen or pencil, handle coins and use a mobile phone”. The applicant advised that her parents usually did the family shopping however, “she is able to help and would be able if necessary to carry a full shopping bag on a good day”.

35. Having regard to the available evidence and the descriptors in Table 2 of the Impairment Tables, I am not satisfied that the evidence supports a finding that the applicant has some difficulty with most of the descriptors for a 5 point rating. It follows that the appropriate impairment rating for this condition is zero points.

    Lower limb condition- hip and knee pain/fibromyalgia

36. The Secretary accepts, and I agree, that the applicant suffered from knee pain and fibromyalgia during the relevant period.  This condition was full diagnosed, treated and stabilised during the relevant period which is supported by the evidence of Dr Michael Tjeuw, rheumatologist, Dr Sanki and Dr Mehmet. The issue in contention is the proper impairment rating to be assigned in respect of the impairment arising from this condition.

37. In a medical report dated 24 September 2014, Dr Mehmet wrote that the applicant had “limited endurance in standing walking, sitting> 15 mins causes pain”.

38. In a report dated 6 July 2015, Dr Sanki, general surgeon, noted that the applicant “had marked pain in her knees for which she had an trust appears with unsuccessful results and she had so much pain in her knees that she was not able to go around the shopping centre or to the car park to the shopping centre”. However, in the JCA dated 19 February 2016, it is noted that the applicant “reports nil issues with mobility following surgery in 2015”.

39. In a report dated 4 July 2016, Dr Liew, rheumatologist, states, that as at 28 June 2016, the applicant continued to suffer from widespread pain. He noted that the applicant said she had “difficulty standing/walking for more than 15 to 20 minutes at a time”. This report however falls outside of the relevant period.

40. Before the SSCSD, the applicant reported that she found it difficult to walk to the nearby bus stop and shops and to negotiate stairs. She advised that she was able to stand for 10 minutes but may have to lean on an adjacent wall. She said she was able to kneel but was unable to squat.

41. Table 3 of the Impairment Tables provides that two descriptors must be met in order for a five point rating to be warranted. Given that the applicant has some difficulty walking to local facilities I accept that descriptor (1) for a five point rating in Table 3 is satisfied. However, descriptor (2) states:

    At least one of the following applies:

    (a)the person is unable to stand for more than 10 minutes;

    (b)the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

42. The medical evidence does not support a finding that the applicant cannot stand for more than 10 minutes. Her self-reporting of symptoms noted in the JCA and in the reasons of the SSCSD, demonstrates that her condition has somewhat improved following surgery in 2015. There is no evidence to suggest that the applicant needs to use lower limb prosthesis or a walking stick. Accordingly she does not satisfy descriptor (2). It follows that no impairment points can be assigned for the applicant’s functional impairment for this condition.

    Thyroid condition/goitre

1. I note that Dr Gander, in a letter dated 10 November 2015, says that the applicant was “under investigation and treatment for a neurological and thyroid problem”. There is also medical imaging evidence which shows that the thyroid gland appeared to be mildly to moderately enlarged and extended in late 2012.

2. There is limited medical evidence pertaining to the functional impact of this condition during the relevant period. In a medical report dated 24 September 2014, Dr Mehmet recorded that “Hyperthyroidism” was generally well managed and caused minimal or limited impact on the applicant’s ability to function.

3. There is also insufficient medical evidence regarding treatment for this condition. As such, it is not possible to determine whether this condition was fully treated and stabilised during the relevant period. It follows that an impairment rating cannot be assigned.

   CONCLUSION

4. The overall impairment rating arising from the applicant’s conditions as at the relevant period warrant a total impairment rating of 10 points. Since the applicant’s conditions do not rate 20 or more points under the Impairment Tables, it is not necessary for me to consider whether she had a continuing inability to work during the relevant period. It follows that her claim for DSP cannot succeed.

5. I affirm the decision under review. 

6. The applicant may apply for DSP again at any time.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 4 October 2017

Date(s) of hearing:	21 June 2017
Applicant:	By phone
Solicitors for the Respondent:	Steven Davidson, Department of Human Services