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

[2017] AATA 1392

Kerr and Secretary, Department of Social Services (Social services second review) [2017] AATA 1392 (30 August 2017)

Division:GENERAL DIVISION

File Number(s):      2017/0004

Re:Chanelle Kerr

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:30 August 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 condition is fully diagnosed, treated and stabilised – 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

30 August 2017

1. Chanelle Kerr, the applicant, seeks review of a decision made by the Social Security and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) on 6 December 2016. The SSCSD affirmed a decision made by the Department of Social Services (“the Department”) on 27 April 2016, and affirmed by an Authorised Review Officer (“ARO”) on 6 September 2016, refusing the applicant’s claim for the disability support pension (“DSP”) which was lodged on 25 February 2016.

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 25 February 2016, when she applied for the DSP, or within the following 13 weeks, that is, by 26 May 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 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)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 2 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 2 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.

12. 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:

    (c)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)

    Complex regional pain syndrome - Upper limbs

13. The Secretary concedes, and I accept, that the applicant’s complex regional pain syndrome (“CRPS”), with symptoms in her upper limbs, was fully diagnosed, treated and stabilised during the relevant period. This is supported by the evidence of Dr Boesel, interventional pain specialist, in his reports dated 15 October 2013 and 13 January 2016.

14. The issue then to be determined is the functional impact this condition has on the applicant with regard to the Impairment Tables.

15. Section 10 of the Impairment Tables instructs how a single condition causing multiple impairments is to be assigned an impairment rating. Section 10(3) provides that “where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table”. Section 10(4) provides that “when using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table”.

16. It is appropriate to rate this condition under Table 2 (upper limb function) of the Impairment Tables as the medical evidence indicates that the pain impacts the applicant in relation to her upper limb function. This table adequately addresses the functional impact of this condition.

17. The evidence of Dr Wong, Dr Boesel and Mr Cooke indicates that the applicant’s left upper limb is significantly more affected than her right upper limb.

18. In the Job Capacity Assessment report dated 6 April 2016 (“JCA”), it was recorded that in March 2016, the assessor contacted Mr Andrew Cooke, an accredited exercise physiologist/physiotherapist, to clarify impairments in the applicant’s upper limb function. It is noted that the applicant had been a patient Mr Cooke since July 2013. Mr Cooke advised that the applicant was primarily impacted by pain as opposed to loss of upper limb function; her fine motor function was not impaired (ability to write, do up buttons, tie shoelaces, handle small objects); she would have difficulty lifting heavy objects greater than 10 kg; and the applicant had movement to allow her to lift and carry a light but bulky object, as well as to reach up or out to pick up objects, but the applicant’s ability to do so may be limited by pain.

19. In a report dated 18 January 2017, Mr Cooke advised that the applicant’s “symptoms have significantly deteriorated since March 2016 to now and have plateaued to the point where she has extreme difficulty using her upper limb at all particularly the left arm. She reports dropping even light objects regularly and is unable to lift about 1 kg”.

20. It appears that the applicant’s condition significantly deteriorated midway through the relevant period, to a point where she had the functional difficulty as identified in his report dated 18 February 2017. In this report, Mr Cooke again reiterates that the applicant’s condition had significantly deteriorated and advises that she has difficulty with most of the following:

    ·picking up a 1 L carton full of liquid;

    ·picking up a light but bulky object requiring the use of two hands together;

    ·holding or using a pen or pencil;

    ·doing up buttons or tying shoelaces;

    ·using a standard computer keyboard; and

    ·unscrewing a lid of a soft drink bottle.

21. Having regard to all the evidence before me and the descriptors contained in Table 2 of the Impairment Tables, I find that an impairment rating of 10 points is appropriate for this condition.

    Mental Health Condition - Anxiety and depression

22. 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)

23. The Secretary concedes, and I accept, that the applicant’s mental health condition was fully diagnosed during the relevant period. This is confirmed by the applicant’s general practitioner, Dr Wong, Mr Ramony Chan, clinical psychologist, and Ms Glancey, psychologist.

24. Contrary to the Secretary’s position, I find that the applicant’s mental health condition was fully treated and stabilised during the relevant period for the following reasons.

25. While I acknowledge that Ms Kate Glancey states in her report dated 22 March 2015, that the applicant “has recently returned again for psychological assistance”, I do not accept that this supports a finding that the applicant’s mental health condition was not fully treated and stabilised during the relevant period. It is also noted in the report that Ms Glancey first saw the applicant eight years prior following a workplace incident and that the applicant pursued psychological treatment at that time. It is also noted that since that time Ms Glancey has seen the applicant intermittently for assistance with other issues.

26. In the report of Laura McLaughlan, clinical psychologist, and Ms Reid dated 6 June 2016, it is noted that the applicant “attended psychological treatment in 2007, following an assault in [the applicant’s] workplace”. It is also noted that the applicant “suffers from chronic pain and physical limitations associated with the complex regional pain syndrome, which in turn triggered depression and anxiety”.

27. In a report dated 7 October 2016, Ms Glancey, psychologist, says:

    “Treatment is largely supportive in nature… I remain guarded regarding her prognosis with mental disturbance. Symptoms of disturbance as reported by [the applicant], are largely associated with pain and compromise physical functioning. I see no reason to anticipate spontaneous recovery from symptoms of mental disturbance. Whilst ever she continues to suffer pain and physical restrictions, she is likely to suffer mental disturbance.

    Her prognosis with mental disturbance is largely related to her physical condition.” [Emphasis added]

28. It is plain on the evidence that the applicant has a long-standing mental health condition of which she has received psychological treatment and antidepressant medication in the past and has continued to receive intermittent treatment as and when her symptoms worsen. Her mental health condition appears to be largely related to her physical condition of CRPS. As I have already found that this condition is permanent, I am satisfied that her mental health condition is also permanent. I am not convinced that any further treatments will have any significant impact on her mental health condition. They are supportive in nature.

29. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.

30. In the report of Ms Laura Smith-Wright dated 24 May 2017, it is noted that the applicant resides with her mother and father. She reported having a supportive relationship with them over the past year. The applicant reported that she had been in a long distance relationship since November 2015. Her partner lives in America. Ms Smith-Wright outlines in some detail a description of the difficulties the applicant faces due to her pain, depression and anxiety. Relevantly to the applicant’s mental health condition, she states that the applicant reported difficulties with building motivation and energy to complete simple tasks at home such as cooking and she felt recreational social activities were too overwhelming for her to even contemplate. The applicant reported that she was highly avoidant of public transport due to her anxiety and assault trauma, as a result she elects to drive, however reported that she is unable to travel long distances due to pain, fatigue and concentration difficulties. It is noted that the applicant’s interpersonal relationships were significantly impacted by her pain, mood and anxiety. She reported that she was unable to complete tasks like reading a book, concentrating through a movie and feels overwhelmed when given too many instructions. This report falls well outside of the relevant period, however the applicant said at hearing that it was consistent with “how she was” during the relevant period.

31. In the report of Laura McLaughlan, clinical psychologist, and Ms Reid dated 6 June 2016, they state that the applicant has, inter alia:

    ·a depressed mood nearly every day;

    ·she has impairments to her social and occupational functioning and has withdrawn from friends and family;

    ·that she reported a history of self-harming (cutting) although she reported not engaging in this behaviour for a few years;

    ·that she experiences regular panic attacks;

    ·she was well groomed, cooperative and appeared relaxed and friendly during the assessment interview.

32. The applicant reported during the hearing before the SSCSD that she lives with her parents, but is capable of independent living and attends to self-care; she has a good relationship with her parents, although occasional strain with her mother, and she sees friends every two weeks; the applicant reported travelling to the United States with one of her parents for experimental therapy for her pain condition. She reported being able to focus on complex tasks such as studying for a certificate three course online, and on physiotherapy exercises twice a day. The applicant has episodes of panic, but is able to make decisions; she has aspirations and a plan for the future.

33. At hearing the applicant confirmed that she lived with her parents and stated that during the relevant period she was home most days by herself. She said that she was able to shower and was independent in self-care, although her mother would run a bath for her if her pain was too bad and prepared most of her meals. She said that she did not perform any other household activities. The applicant advised that she could drive for 10 minutes.

34. The applicant advised the Tribunal that in February 2016, she was working at Hooters for a couple of hours, two to three days per week. She said that her job entailed preparing drinks behind the bar and cash handling. She said that she stopped working there after about three to four weeks because the “business changed”. The applicant said that she completed her online study in Tourism in December 2016. She said that her study involved online research and was predominantly assignment based. She typed her assignments on the computer and the applicant confirmed that she could complete these tasks however could only be on the computer for 10 minutes at a time and needed to take frequent long breaks. In regards to concentration she said that she could only concentrate for a maximum of half an hour at a time.

35. The applicant’s travel records show that she departed Australia on 5 November 2015 and returned on 17 November 2015. At hearing the applicant confirmed that this travel was to Hawaii. She said that she travelled with a friend and that she mainly relaxed on the beach and didn’t do much else on the holiday. The applicant said she went to the airport with her parents. She then met her friend who helped her with her bags and transfers to and from the airport and hotel. The applicant’s travel record also shows that she departed Australia on 15 July 2016 and returned on 25 July 2016. At hearing the applicant advised that this travel was to the United States of America and that the purpose of the trip was to visit her partner who lives there. During this trip, the applicant travelled by herself.

36. Having regard to all the evidence before me and the descriptors contained in Table 5 of the Impairment Tables, I am satisfied that the applicant has mild functional impact on activities involving mental health function and that 5 impairment points is appropriate for this condition.

    Other conditions

37. In the JCA the applicant reported suffering from migraines. There is insufficient medical evidence to verify this condition and to make a finding that it was fully diagnosed, treated and stabilised during the relevant period. It follows that an impairment rating cannot be given for this condition.

    CONCLUSION

38. 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.

39. I affirm the decision under review. 

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

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 30 August 2017

Date(s) of hearing:	6 June 2017
Advocate for the Applicant:	S Kerr
Solicitors for the Respondent:	Department of Human Services