Kelly Harrison and Secretary, Department of Social Services

[2014] AATA 273

[2014] AATA  273

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/1553
Re	Kelly Harrison
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Member I Thompson
Date	8 May 2014
Place	Adelaide

The decision under review is affirmed.

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Member I Thompson

CATCHWORDS

SOCIAL SECURITY - claim for Disability Support Pension - whether conditions warranted 20 impairment points under one or more tables - continuing inability to work - program of support - decision affirmed.

LEGISLATION

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

Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Member I Thompson

8 May 2014

HISTORY

1. Mrs Harrison lodged a claim for a disability support pension (DSP) with Centrelink on 12 October 2011.  Her claim was rejected on 17 November 2011.  An Authorised Review Officer (ARO) affirmed that decision on 21 December 2011.

2. The ARO concluded that Mrs Harrison suffers from a left hip condition which attracts 10 impairment points.  In addition the ARO concluded that Mrs Harrison suffers from depression which attracted 10 impairment points.  The ARO found that Mrs Harrison did not have a severe impairment because neither of her impairments alone attracted 20 points under a single table.  The criteria for a “continuing inability to work” includes the need to have actively participated in a “program of support”. It is common ground that Mrs Harrison had not participated in a program of support.

3. Mrs Harrison appealed to the Social Security Appeals Tribunal (SSAT). On 16 March 2012 the SSAT affirmed the decision of the ARO.

4. The SSAT found that Mrs Harrison’s left hip condition was fully diagnosed, investigated, treated and stabilised and under Table 4 of the Impairment Tables attracts an impairment rating of 10 points through moderate interference with walking, climbing, squatting and kneeling. The SSAT found that Mrs Harrison’s depression was fully diagnosed, investigated, treated and stabilised. Under Table 6 of the Impairment Tables, the depression attracts an impairment rating of 10 points arising out of moderate and regular symptoms. The SSAT found that Mrs Harrison’s total impairment rating was 20 points. However it could not be concluded that Mrs Harrison had a continuing inability to work as she had not actively participated in a program of support. Accordingly she did not satisfy all of the requisite provisions of s 94(1) of the Social Security Act 1991 (the Act).

   ISSUES

5. The particular issue which arises for consideration is whether Mrs Harrison satisfied the qualification criteria for DSP set out in s 94 of the Act as at the date of the claim, 12 October 2011, or within 13 weeks from the date of the claim (the “assessment period”).

6. The specific matters which need to be considered are:

   ·Whether Mrs Harrison has a physical, intellectual or psychiatric impairment;

   ·Whether the impairments attract a total rating of at least 20 points under the Impairment Tables;

   ·Was Mrs Harrison required to have “actively participated in a program of support” and if so, did she satisfy that requirement; and

   ·Whether Mrs Harrison has a “continuing inability to work” because of the impairments.

7. Sections 41 and 42, and clauses 3 and 4 of Part 2 to Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act), as they apply to Mrs Harrison’s case, provide that the relevant assessment period for consideration of the DSP claim is a period of 13 weeks from 12 October 2011.

8. Schedule 1B of the Act – Tables for the Assessment of Work Related Impairment for Disability Support Pension lists the criteria for the allocation of impairment points.  It is noted, in passing, that new Impairment Tables were introduced on 1 January 2012 for applications lodged on or after 1 January 2012.  However, the “old” Impairment Tables apply in this case.

   Contentions

9. The respondent accepts the findings of the ARO and SSAT as follows:

   ·The left hip condition attracts 10 impairment points under Impairment Table 4 – Function of the Lower Limbs.

   ·The depression attracts an impairment rating of 10 points under Impairment Table 6 – Psychiatric Impairment.

10. The parties agreed that Mrs Harrison’s eye condition was not a relevant issue.  The condition was not sufficiently severe to attract an impairment rating. 

11. Mrs Harrison’s contention to this Tribunal was that her hip condition should be considered under both Impairment Tables 4 and 21.  Table 21 concerns Intermittent Conditions. 

12. Mrs Harrison submitted that there are intermittent episodes when her hip locks and she experiences significant pain and those intermittent episodes should be assessed in addition to her overriding condition of a damaged hip with its day to day symptoms.  Mrs Harrison contended that hip condition should be considered under both Tables 4 and 21 and that it is appropriate to give her the benefit of combined points under both Tables with an impairment rating of at least 20 points to be applied to the single condition.  In that event it would follow that she has a continuing inability to work due to a severe impairment as defined in the Act. 

13. The respondent contends that Table 21 should not be used to assign impairment points because Mrs Harrison has ongoing symptoms rather than intermittent symptoms associated with the left hip.  The respondent contended that Mrs Harrison has a functional impairment of her lower limbs and that the body system specific table which is appropriate is Impairment Table 4.  The respondent therefore suggested that Impairment Table 4 was correctly chosen by the ARO and SSAT to address the functional impact of Mrs Harrison’s left hip conditions.  The respondent further contended that as there is not a rating of 20 points under one Impairment Table that Mrs Harrison must also have participated in a program of support to establish a continuing inability to work.  It is agreed that Mrs Harrison did not participate in a program of support. 

    MEDICAL REPORTS

14. Dr Tahir is Mrs Harrison’s general medical practitioner.  He wrote four medical reports and they were received into evidence as exhibits.

    Left Hip Condition

15. A report from Dr Tahir dated 22 October 2011[1] confirmed that Mrs Harrison sustained a left hip fracture when she was a passenger in a motor vehicle accident at the age of four.  The symptoms which she exhibited included pain in the hip, difficulties standing and sitting, and the development of arthritis.  Dr Tahir concluded that the left hip condition is likely to persist for more than 24 months and remain unchanged

    [1] Exhibit R1, T9.

16. Following a consultation on 13 February 2012, Dr Tahir provided an undated report which, in relation to the hip condition, stated that Mrs Harrison: [2]

    “Has now developed arthritis in the left hip - is on a waiting list for hip replacement.”

    [2] Exhibit R1, T4 page 19.

17. Following a consultation with Mrs Harrison on 2 July 2012, Dr Tahir provided an undated report [3]which, in relation to the hip condition, stated:

    “Arthritis hips – after accident in 1986. 

    Symptoms 

    Pain in both hips on prolonged sitting, standing and walking.  Locking and unlocking of both hips. 

    Treatment – Capadex, nurofen plus, physiotherapy.  On waiting list for hip replacement.” 

    On Mrs Harrison’s behalf, the Welfare Rights Centre (SA) Inc. wrote to Dr Tahir by letter dated 4 July 2012.[4]  In relation to Impairment Tables, the relevant part of that letter states as follows:

    “WRC has suggested that maybe the Table 4 ‘Function of the Lower Limbs’ underestimates the level of impairment associated with the leg function because it is intermittent in character.  Mrs Harrison indicates that she can walk and can sit with a 20 minute tolerance but that, when her hips lock up she is unable to move and the pain associated with the locking up is intense.  Under Table 4 ‘unable to walk or stand’ would rate 20 points but this inability to walk or stand is intermittent. 

    Would you please write a short note about which Table you think would best describe Mrs Harrison’s impairment to work and at what level according to the Table.”

    [3] Exhibit A2.

    [4] Exhibit A1.

18. In an undated letter, Dr Tahir replied[5]:

    “In response to letter from WRC dated 4/7/12. 

    After reading the attached documents I think it is most appropriate to use Table 21 for Mrs Harrison’s hip problems. 

    She does have intermittent issues which affect her significantly.”

    [5] Exhibit A1.

19. In his final report dated 24 November 2013[6], addressed to Mrs Harrison’s solicitor, Dr Tahir stated that:

    “Impairment Table 4 was considered initially but as it is intermittent locking so it was not suitable for her disability.”

    Dr Tahir added:

    “Under impairment table 21 I would consider the exacerbations to be level four in intensity and Medium in duration and so severity level will be E and she is having symptoms > 100 days per year so she would get 30 points as per Table 21.4.”

    Dr Tahir then concluded:

    “Her hip condition is going to impact her ability to work greatly and she will find it extremely difficult to work.  In my opinion it would render her incapable of working.”

    [6] Exhibit A3.

20. A Job Capacity Assessor met with Mrs Harrison on 7 November 2011 and submitted a Job Capacity Assessment Report dated 15 November 2011.[7]  She reported that her hip locks, causing pain and restriction with mobility.  She reported a walking, sitting and standing tolerance of 20 minutes.  She had difficulties climbing stairs and squatting.  She required assistance to get up from kneeling or squatting positions.  She reported to Dr Tahir that she experienced increased pain during pregnancy and is no longer receiving any benefit from physiotherapy or hydrotherapy.  In relation to treatment taking place at that time Mrs Harrison reported:

    “… that she currently takes nurofen plus as required and also utilises heat packs and hot baths to assist with the management of chronic pain. …” 

    Mrs Harrison also reported that:

    “… she underwent previous surgical intervention on her hip and pelvis as a child and will require a total hip replacement in the future, however this is unlikely to occur over the next two years due to her age”.

    The Job Capacity Assessor recommended 10 impairment points for the hip condition as Mrs Harrison experiences:

    “… altered/loss of strength, mobility, stability, balance and coordination causing moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling.”[8]

    [7] Exhibit R1, T8.

    [8] Exhibit R1, T8 page 40.

    Depression

21. The respondent accepted the findings of the ARO and SSAT regarding the rating of 10 points under the Impairment Tables for Mrs Harrison’s depression.  Mrs Harrison does not dispute that assessment.  The Impairment Table which is appropriate for assessing the degree of impairment resulting from psychiatric conditions is Table 6 and the relevant section provides as follows:

Rating
NIL	…
TEN	Moderate and regular symptoms and generally functioning with some difficulty.  (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships).  May have received psychiatric treatment which has stabilised the condition.  Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work.  (e.g. short periods of absence from work)

Noting that the rating of 10 impairment points is not in dispute, the Tribunal is satisfied on the material before it that Mrs Harrison’s condition of depression attracts an appropriate rating of 10 points during the relevant period.

Eye problems

1. In her application to the Tribunal for review, Mrs Harrison referred to visual loss difficulties.  This condition was not relied upon at the hearing as having any relevance to the DSP claim.

   THE EVIDENCE

2. Mrs Harrison gave evidence to the Tribunal.  She is 32 years old.  She is married and her husband now receives a Carers pension.  They have six children of whom the oldest is 14 years and the youngest is 5 weeks.  To the extent that she can, Mrs Harrison supports her husband and provides care for her children.  However she has considerable difficulties, particularly with mobility.  She can walk but she cannot walk long distances.  She can pick up her baby.  She has difficulty leaning and bending especially if her hip locks.  Occasionally she can fold the washing.  However she does not do the vacuuming or washing the dishes.  Her husband does the housework.  She said that her hips started to lock in 2009.  The episodes of hip locking may happen about 25 times a week and more often in cold weather.  The locking of the hips is sometimes preceded by shooting pain down the leg and other times there is no warning.  When the hips lock she has to rest.  Sometimes the pain goes after 30 minutes.  Often it lasts much longer.  She experiences difficulty generally with day to day pain.  She has problems sleeping. 

3. Mrs Harrison referred to arthritis that she suffers in her hips.  It is worse in cold weather.  However the pain from the arthritis is not as bad as the pain that she suffers when her hips lock.  She takes mainly nurofen for the pain.  In the past she has had physiotherapy treatment.  However it put more strain on her body and she could not continue with it.  Dr Tahir has prescribed medication to try to reduce the pain.

4. Mr Harrison gave evidence in which he stated that Mrs Harrison suffers pain from her hip condition every day.  He said that when her hips lock, it happens on average ten times or more per week and she has to lie down to recover.  When she is badly affected from that pain, he assists with bathing and toileting.  Sometimes she takes about five minutes to recover from the hip locking, on other occasions it might last for up to two hours.  He said that she cannot drive a car more than once or twice per week because of the hip pain.  Mr Harrison confirmed that he is now Mrs Harrison’s carer and he has undertaken that responsibility for about two years, both to look after the children and take care of Mrs Harrison.

   ANALYSIS

5. The key issue for the Tribunal to determine is whether Mrs Harrison’s left hip condition should be assessed under Table 4 or under both Tables 4 and 21.  Table 21 concerns “Intermittent Conditions”.  In the guide to Table 21, the following introduction appears:

   “Table 21 is used to assess conditions that result in intermittent impairment.  These are conditions that usually cause minimal or no impairment in between discrete, recurrent episodes of impairment.  Such intermittent impairments are assessed by reference to the severity, duration and frequency of the episodic attacks”

   A rating is determined from an assessment of the severity, duration and frequency of the episodic attacks and Table 21 provides the criteria for assignment of a rating.

6. In order to qualify for DSP, Mrs Harrison must satisfy the relevant requirements of s 94(1) of the Act. In relation to the assessment period, the respondent accepts that Mrs Harrison has the requisite impairment. In particular the respondent accepts that 10 points are assignable to each of the conditions of depression and left hip.

7. Mrs Harrison submits that during the assessment period her hip condition should be considered under both Tables 4 and 21 because she suffers from continuing difficulties from the condition itself and in addition she suffers significant and frequent intermittent episodes where her hips lock and she becomes completely debilitated. Further, it is contended that she would attract a rating of combined points under both tables of at least 20 points for this single condition, and therefore that she has a continuing inability to work due to severe impairment as defined in s 94(1)(c) and 94(2) of the Act. In that event, she would not be required to have undertaken a program of support.

8. The Tribunal notes that paragraph 9 of the introduction to the Impairment Tables states:

   “Always use a Table specific to the functional impairment being rated unless the instructions in a section specify otherwise.  The system-specific Tables provide appropriate criteria with which to rate a disorder.  The procedure is to identify the loss of function, refer to the appropriate system Table and identify the correct rating …”

9. The guide to Table 21 also states that:

   “… where the conditions also cause acute exacerbations that are considered significantly frequent and severe, an additional rating may also be provided from Table 21 for the impairment caused by these intermittent exacerbations.  For example, Chronic Obstructive Airways Disease with frequent attacks of severe Acute Bronchitis may be rated under Table 21 for the intermittent effects as well as under either Table 1 or Table 2 for the effects of chronic airways limitation. …”

10. As illustrations, Table 21 provides that ratings can be given for:

    “Intermittent but continuing disorders that remain asymptomatic between discrete episodes of impairment e.g. gout, epilepsy, Meniere’s Disease, vertigo & tinnitus …”

11. The Tribunal considers that the evidence is clear that Mrs Harrison sustained long term, serious injuries in a motor vehicle accident when she was only four years old.  The repercussions have remained with her until the present time.  The condition that caused the impairment during the assessment period is the left hip condition.  Table 4 is system specific for that impairment and the level of functional loss. 

12. The guide to Table 4 (function of the lower limbs) states that:

    “…regardless of the number of conditions involved and whether one or both lower limbs are affected, a single rating is provided from this table for the total lower limb impairment rating. …”

13. The respondent argued that Table 21 typically applies to asymptomatic conditions such as epilepsy and that Dr Tahir’s interpretation of the process for selecting the appropriate Impairment Table was not correct.  The respondent contended that Mrs Harrison’s left hip condition is not asymptomatic.  In fact, it is a continuing impairment that has a constant impact that affects functional capacity.  Therefore, the respondent submitted that Table 21 does not apply as it is used to assess conditions whose chief characteristic is that they are inherently episodic in nature and are asymptomatic between episodes.

14. The evidence of Mrs Harrison and Mr Harrison indicates that the problems which she suffers from the left hip condition are troublesome, painful and a continuing difficulty for her.  They do not constitute the form of intermittent impairment which Table 21 postulates.  It follows that the Tribunal considers that the respondent’s submission regarding the application of Table 21 is correct.

15. The functional loss which Mrs Harrison has sustained arising out of the hip condition, inclusive of both arthritis and of episodes when the hips lock, is appropriately assessed under Table 4.  The hip condition is unfortunately continuous and the symptoms are regular, both in relation to arthritis and in relation to locking of hips.  Under Table 4 a rating of ten points is appropriate where there is:

    “Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following:  climbing, squatting, sitting or kneeling …”

    SUMMARY

16. The Tribunal concludes that Mrs Harrison’s left hip condition was fully diagnosed, investigated, treated and stabilised during the assessment period.  The Tribunal finds that Table 4 of the Impairment Tables is the appropriate table to assess an impairment rating and that the impairment rating is ten points because of moderate interference with walking, climbing, squatting and kneeling.

17. The Tribunal concludes that Mrs Harrison’s depression was fully diagnosed, investigated, treated and stabilised during the assessment period and that the impairment rating of ten points under Table 6 of the Impairment Tables is appropriate.  With a total impairment rating of 20 points under more than one table there was a necessity that Mrs Harrison has a continuing inability to work.  That would require participation in a program of support and it is agreed between the parties that Mrs Harrison did not undertake such a program.  Accordingly she was not qualified for DSP at the time she made her claim and during the assessment period.

1. As Mrs Harrison was not qualified for the DSP at the time she lodged the claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.

   DECISION

   The decision under review is affirmed.

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

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Administrative Assistant

Dated 8 May 2014

Date(s) of hearing	11 March 2013
Advocate for the Applicant	Ms M Rudham
Solicitors for the Applicant	Rudham Lawyers
Advocate for the Respondent	Mr A Parker
Solicitors for the Respondent	Dept of Human Services