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

[2021] AATA 253

KRZX and Secretary, Department of Social Services (Social services second review) [2021] AATA 253 (18 February 2021)

Division:GENERAL DIVISION

File Number(s):      2019/2116

Re:KRZX

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:18 February 2021

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – post traumatic stress disorder – spinal condition – upper limb condition – obstructive sleep apnoea – lower limb condition – whether the applicant’s conditions rate 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991(Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 42, sch 2

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011(Cth) s 6

REASONS FOR DECISION

Senior Member A Poljak

18 February 2021

1. The applicant seeks review of a decision made by the Social Security and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) on 27 March 2019 (“decision under review”). The SSCSD affirmed a decision made by the Department of Social Services (“the Department”) refusing the applicant’s claim for the disability support pension (“DSP”) which was lodged on 2 July 2018.

2. The applicant’s claim for DSP was rejected on the basis that she did not satisfy the eligibility criteria set out in section 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 (Cth) (“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 2 July 2018, when she applied for the DSP, or within the following 13 weeks, that is, by 1 October 2018 pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”).

4. The Secretary of the Department (“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 several conditions during the relevant period, namely, post-traumatic stress disorder (PTSD), obstructive sleep apnoea, spine condition, upper limb limitation and lower limb impairment. She therefore satisfies paragraph 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 section 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) of the Impairment Tables 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 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 – PTSD

12. The Secretary accepts, and I agree, that the applicant’s condition of PTSD was full diagnosed, treated and stabilised during the relevant period. This is supported by the evidence of consultant psychiatrist Dr Brian Parsonage and Dr Brian Neale, and clinical psychologist, Michael Scarlett. The issue in contention is the proper impairment rating to be assigned in respect of the functional impact arising from this condition.

13. At hearing the applicant said that her mental health condition had worsened since 2018, especially as a result of COVID-19 and the resulting restrictions on social interactions. She advised she was getting more treatment and had increased her medication. This is very unfortunate and understandably a difficult time for the applicant. However, for the purposes of this application before the Tribunal, I can only look at the applicant’s condition as it was during the relevant period.

14. Below I have summarised some of the relevant aspects of the medical evidence in respect of the descriptors in Table 5 of the Impairment Tables.

    (a) Self-care and independent living

15. In the Employment Services Assessment Report dated 13 March 2018 (ESA), the assessor noted that the applicant was independent in her self-care.

16. In the report dated 16 March 2017, Dr Parsonage, consultant psychiatrist, noted that the applicant indicated that while she showered most days, she had given up preparing meals and frequently missed meals unless prompted by her husband.

17. In the Job Capacity Assessment report dated 3 October 2018, the assessor noted that the applicant confirmed she provided assistance to her husband due to his injuries from a car accident such as help with reminders due to his poor memory and fine motor control. It is noted that the applicant completes the housework but finds it difficult to get motivation. It is noted that the applicant confirmed that she would eat if her husband cooked.

18. The applicant attended on Dr Christopher Bench, forensic psychiatrist, on 30 November 2018 for the purposes of an evaluation for an independent medical evaluation. In his report dated 4 December 2018, Dr Bench recorded, the applicant did minimal housework; frequently missed meals; showered four to five times a week; brushed her teeth once a day; and sometimes wore the same clothes for a couple of days in a row. He opined that the applicant would not be able to live independently without significant support and assistance and this was most consistent with a moderate impairment.

19. In a telephone discussion with Dr Neale, consultant psychiatrist, on 20 August 2019, the Health Professional Advisory Unit assessor noted that Dr Neale opined that “while [the Applicant] experienced some occasional self-neglect due to her mental health, it was not at a level of severity that would require additional support even if her husband was no longer in the household”.

    (b) Social/recreational activities and travel and (c) Interpersonal relationships

20. The available evidence suggests that the applicant is actively involved in some social/recreational activities and was able to travel independently. In the report dated 16 March 2017, Dr Parsonage, consultant psychiatrist, noted that the applicant “was less inclined to go out than she used to however she still attended her activities of going to a craft group each Tuesday, seeing friends occasionally, watching the shows she liked on TV and vising her daughter on the Central Coast”. Dr Parsonage also reported that the applicant was ‘able to drive to the Central Coast to visit her daughter by herself. She thought she could travel to unfamiliar places in Sydney as long as she had a GPS’. The applicant indicated that her only restriction in driving was fatigue which she was able to overcome by “drinking V drinks”. Dr Parsonage also noted that the applicant reported she was still close to her friends, children and husband but was more irritable, which “caused some relationship strain”.

21. In the ESA dated 13 March 2018, the assessor noted that the applicant indicated she didn’t have many friends; however, this had been the case for most of her life. The assessor noted that the applicant advised she was able to go places independently but gets distracted easily however can watch television and movies. The applicant indicated she was able to sew but can fall asleep and that her medical condition did not prevent her from using public transport without substantial assistance.

22. Mr Scarlett, clinical psychologist, reported on 23 May 2018 that the applicant was restricted socially and removed in her close personal relationships.

23. Dr Bench noted in his report that the applicant spent the majority of her time watching television. She attended some social events including the Rural Fire Service Christmas party on 24 November 2018 by herself and went out with her husband for his birthday on 20 October 2018. She attends a weekly craft session and walks her dog on a weekly basis. Dr Bench recorded that the applicant was unlimited in her ability to travel and was able to travel the four-hour trip to the Central Coast on an independent basis. He noted that the applicant’s relationship with her husband was “okay” and that she had a good relationship with her three children. The applicant had denied any loss of friendships and was able to provide appropriate supervision to her grandchildren.

24. At the hearing, the applicant confirmed that the only restriction to her driving was fatigue but said that in 2018, she only travelled to the Central Coast once by herself, the rest of the time her husband went with her. The applicant’s husband also gave evidence at the hearing and confirmed that the applicant would need to take breaks when driving.

25. While the applicant has occasional days of reduced activity, most of the time she can maintain some form of recreational activity and is able to travel independently. The applicant has a good relationship with her children and husband. However, fluctuations in her mood causes relationship strain. Her social interactions were very limited during the relevant period. At the hearing, the applicant reported a new friendship with someone she met in her craft group, but she has limited social interaction with her other than talking on the telephone. She has no other friendships. The evidence supports a finding of a mild impairment in relation to social and recreational activities and interpersonal relationships during the relevant period.

    (d) Concentration and task completion

26. In medical certificates to Centrelink signed by Dr Neale in February 2018, he does not record any issues with concentration under symptoms of the applicant’s PTSD.

27. Dr Parsonage stated in his report dated 16 March 2017 that the applicant reported reduced concentration and being forgetful but was able to follow a pattern to make teddy bears at the rate of more than one a week, each one being different and made from a new pattern. In the ESA dated 13 March 2018, the assessor noted that the applicant gets distracted easily however can watch TV/movies; is able to sew but can fall asleep.

28. Dr Bench noted that the applicant had difficulties with her attention and concentration. It recorded that the applicant would do some sewing including teddy bears, but that she no longer had the attention to concentrate to follow patterns. The applicant “loses motivation and attention after approximately twenty minutes”.

29. The applicant and her husband advised the SSCSD that she could be overwhelmed if having a bad day. She made one to two teddy bears a week at home and may spend up to an hour cutting out for these, sometimes dozing off due to sleep apnoea.

30. In a report dated 6 March 2019, Mr Michael Scarlett, clinical psychologist, recorded that on 16 April 2018, the applicant reported, inter alia, poor concentration. He reported that her main presenting concern was her difficulty in managing her anger and associated impulsivity whenever she was reminded of her husband’s accident. He reported these periods of rumination affected her ability to concentrate “For example, [the applicant] said she is currently unable to concentrate on the plot of a movie and therefore has difficulty enjoying the experience”. In a supplementary report dated 10 February 2020, Mr S opined that during the relevant period, the applicant had “very limited concentration/attention span (5-10min)” was often distracted and overwhelmed and was unable to concentrate on TV programs she otherwise enjoyed.

31. On balance, the medical evidence supports a finding of a moderate functional impact for this descriptor.

    (e) Behaviour, planning and decision-making

32. The available medical evidence demonstrates that during the relevant period, the applicant’s behaviour, thoughts and conversation was significantly and frequently disturbed.

33. Dr Parsonage reported that the applicant’s psychological condition arising from her husband’s accident was that she was extremely angry at the man who had caused the accident and “wanted to kill him” and that she hadn’t approached him because she knew she would be charged. The applicant reported that distressing memories of her husband’s injuries would intrude her thoughts every day and she had “dreams of killing the man who caused the accident”. Dr Parsonage reported that the applicant angrily told him she could not stop thinking about the accident.

34. Dr Neale reported on 12 February 2018 that the applicant’s main concern was her “extreme and intense anger towards the driver who caused her husband’s MVA” and that “[s]he continues to harbour fantasies of revenge”. The applicant reported that “she feels that the anger is eating her up but that she cannot stop it and must simply live with it every day”.

35. Dr Bench reported the applicant “continues to have episodic suicidal ideation”.

36. Mr Scarlett reported on 6 March 2019 that the applicant’s main presenting concern at the time of her initial consultation in April 2018 was her “difficulty in managing her anger and associated impulsivity whenever she was reminded of her husband’s accident”. The report of Mr Scarlett dated 23 May 2018 noted the applicant:

    … reports heightened anxiety all of the time… also describes exaggerated startle response and intense feelings of anger being triggered by otherwise benign events. As a result she is quite restricted in her capacity across various domains. She is restricted socially and removed in her close personal relationships. She has difficulty concentrating and is unable to make clear decisions.

37. On 24 April 2018, Dr Snyman, orthopaedic surgeon, reported on the applicant’s progress following her left total knee replacement, noted that the applicant “has been quite angry overall” and that she was directing her anger at himself, the registrars, nurses and physiotherapists.

    (f) Work/training capacity

38. The available medical evidence demonstrates that during the relevant period, the applicant was unable to attend work on a regular basis over a lengthy period due to ongoing mental illness.

39. Dr Parsonage opined that the applicant had generally reduced motivation and a marked degree of irritability and anger which would interfere with her capacity to obtain and sustain employment however, opined that although the applicant could not work in her pre-injury role, she could do “reduced hours in a less stressful position”.

40. Mr Scarlett’s report dated 23 May 2018 reported that due to the extent of the applicant’s symptoms he doubted her capacity for employment at the “current time”. Dr Neale also reported that the applicant is not able to work due to her PTSD. Dr Bench opined that the applicant was unfit for full or part time employment in pre-injury or alternative duties and said “I would be surprised if she could work more than ten hours per week in a low stress environment. She may well be erratic in her attendance or require increased breaks”.

    Impairment Rating

41. Having carefully reviewed the available medical evidence, I am satisfied that during the relevant period the applicant’s mental health condition had a moderate functional impact on self-care and independent living; concentration and task completion and a mild functional impact on social/recreational activities; interpersonal relationships Regarding behaviour, planning and decision making; and work/training capacity, I find that the applicant’s mental health condition had a severe functional impact on these functions.

42. In assigning an impairment rating, subsections 11(b) and (c) of the Impairment Tables provides:

    (b) a rating cannot be assigned between consecutive impairment ratings; and

    (c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied, and… [emphasis added]

43. Accordingly, as the applicant’s mental health impairment falls between a mild to severe rating in the Impairment Tables, I must assign the lower of the ratings. I assign 5 points for functional impairment for the applicant’s mental health condition.

    Spinal Condition

44. On 3 August 2016, a medical certificate signed by Dr Stephen Young, general practitioner, confirmed a diagnosis of chronic pain related to back and neck and stated that the condition was likely to persist for more than 24 months.

45. On 16 November 2016, Dr Young reported that the applicant’s chronic back pain with nerve root involvement affected her sleep and ability to do house chores. Dr Young reported that the applicant underwent a laminectomy in 2005 for acute nerve compression and had completed the Pain Management course with some benefit.

46. There is insufficient medical evidence to find that during the relevant period, the applicant’s spinal condition was fully treated and stabilised. No impairment rating may be applied to this condition.

    Upper Limb Condition

47. An x-ray of the applicant’s left shoulder undertaken in November 2016 showed “[c]alcific tendinosis of subscapularis and supraspinatus. No tendon tear identified”. The medical evidence shows that the applicant underwent some treatment before March 2017 in the form of cortisone injections, physiotherapy and home-based exercises. However, there is limited evidence about the specific details of the treatments received and any benefit obtained by the applicant. The evidence is insufficient to support a finding that the condition was fully treated and stabilised during the relevant period. As such, no impairment rating may be applied to this condition.

    Obstructive Sleep Apnoea (OSA)

1. On 28 August 2017, Dr Chung, thoracic and sleep specialist, reported that the applicant successfully trialled a Continuous Positive Airway Pressure (CPAP) machine and had symptomatic benefit since commencing CPAP therapy.

2. In a report dated 21 February 2018, Dr Bravo, an ear, nose and throat (ENT) surgeon, records that the applicant was suffering from a restricted nasal airway due to nasal polyps. Endoscopic sinus surgery was discussed, and it is noted that the applicant is keen to proceed with the surgery.

3. A medical certificate signed by Dr Nadia Acland and dated 2 August 2018, confirmed the diagnosis of OSA and prescribed the use of a CPAP machine. It was also noted that the applicant is on a waiting list for ENT surgery to help with the condition.

4. I accept the applicant’s OSA was fully diagnosed during the relevant period. However, I am not satisfied that the condition was fully treated and stabilised at the time of the claim and she is still undergoing treatment and is likely to show considerable improvement within two years. It follows that no impairment rating may be applied to this condition.

   Lower Limb Condition

5. I accept that the applicant has a diagnosable lower limb condition. In around early March 2018, the applicant had a total left knee replacement. However, based on the available medical evidence, I am not satisfied that during the relevant period, the applicant’s lower limb condition was fully treated and stabilised. Particularly given that, at the time the applicant submitted her claim for DSP, the applicant reported that she was currently receiving treatment including physiotherapy and hydrotherapy and in a medical certificate dated 2 August 2018, Dr Acland reported that the applicant’s knee condition was likely to show considerable improvement within two years.

6. No impairment rating may be applied to this condition.

   DECISION

7. The overall impairment rating arising from the applicant’s conditions as at the relevant period warrant a total impairment rating of 5 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.

8. I affirm the decision under review.

9. The applicant may apply for DSP again at any time, particularly as the applicant’s condition has worsened since the date of this claim.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 18 February 2021

Date of hearing:	17 September 2020
Advocate for the Applicant:	Mr G Murray, Disability Advocacy NSW
Solicitors for the Applicant:	Mr P Hourigan, Mid North Coast Community Legal Centre
Solicitors for the Respondent:	Ms R Alam, Services Australia