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

[2016] AATA 558

Lahz and Secretary, Department of Social Services (Social services second review) [2016] AATA 558 (1 August 2016) 

Division	GENERAL DIVISION
File Number(s)	2015/5703
Re	Linda Lahz
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	1 August 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised – impairment ratings – continuing inability to work – whether applicant suffered severe functional impact on activities – applicant not found to have a severe impairment within one impairment table –  decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), ss 94(1)(a), (b) & (c), 94(2)(aa)

Social Security (Administration) Act 1999 (Cth), Schedule 2, cl 4(1)

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 2014

REASONS FOR DECISION

Dr I Alexander, Member

1 August 2016

1. In 2011 Ms Lahz, who is now 55 years old, suffered an intracranial haemorrhage which caused a stroke with right sided hemiplegia.

2. On 10 March 2015 Ms Lahz lodged a claim for disability support pension (DSP) on the basis that she suffered medical conditions which were having an impact on her ability to function.

3. The claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act). In particular, she did not satisfy s 94(1)(b) of the Act as her impairment was not 20 points or more under the Impairment Tables.

4. In a decision dated 2 October 2015, the Social Services & Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Ms Lahz had a total rating of 15 points under the Impairment Tables, with 5 points under Table 2 and 10 points under Table 3 so that she did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

5. In these proceedings Ms Lahz seeks review of the decision of the SSCSD.

6. At the hearing Ms Lahz was self-represented but was assisted by her husband.

   ISSUES

7. In order to qualify for DSP Ms Lahz must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with subclause 4(1) of Schedule 2 to the Social Security (Administration) Act1999, that is, between 10 March and 9 June 2015 (the claim period).

8. Section 94(1) of the Act provides that a person is qualified for DSP if:

   (a)the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)the person has a continuing inability to work as defined by the Act.

9. The Respondent concedes, and the Tribunal accepts, that Ms Lahz suffers medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of her claim for DSP.

10. It is agreed that Ms Lahz suffers a persisting right sided hemiplegia which has an impact on her upper limb and lower limb function. Other medical conditions include osteoporosis, metatarsal stress fractures and cervical spondylosis. Ms Lahz also claims that she suffers cognitive impairment as a result of the stroke.  

11. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

12. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).

13. The introduction to each relevant Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

14. Also, the introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that 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)”.

15. The Respondent contends that, during the claim period, Ms Lahz had had a total rating of 15 points under the Impairment Tables and, therefore, had not satisfied 94(1)(b) of the Act.

16. Alternatively, the Respondent contends that, during the claim period, Ms Lahz could not satisfy section 94(1)(c) of the Act as she did not have a “continuing inability to work” because she had not actively participated in a program of support (POS) as required by section 94(2)(aa) of the Act.

17. Section 94(2)(aa) provides that a person has a “continuing inability to work” because of an impairment if the Secretary is satisfied that “in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)… the person has actively participated in a POS within the meaning of subsection (3C)”.

18. Subsection 3B provides that a person’s impairment is a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

19. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides, inter alia, that a person has actively participated in a POS if they have participated in a program of support for a period of at least 18 months during the 36 months prior to the date of claim.

20. At the hearing it was agreed that Ms Lahz had not participated in a POS during the 36 months prior to the date of claim which means that her application for review cannot succeed unless she suffered a “severe impairment” during the claim period.

21. It follows that the determinative issue in this matter is whether, during the claim period, Ms Lahz suffered an impairment of 20 points or more under the Impairment Tables and, in particular, whether any of her impairments warranted a rating of 20 points or more under a single Impairment Table.

    UPPER LIMB FUNCTION

22. The Respondent accepts that during the claim period Ms Lahz suffered a mild functional impact on activities using hands and/or arms.

23. At the hearing Ms Lahz, who is right handed, confirmed her evidence to the SSCSD that she was unable to lift a two-litre container in her right hand but could do so in her left. She could not lift her right arm above shoulder height but was able to do up buttons and shoelaces, handle coins, write with a pen in her right hand but usually could not undo the lid of a soft drink bottle.

24. The SSCSD noted that in a report dated 16 March 2015 Dr Cordato, neurologist, stated that Ms Lahz had a reduced range of movement of the right shoulder and shoulder weakness but that “distal strength in her upper limb is within normal limits”. I note that a copy of this report was not made available to the Tribunal.

25. In a letter dated 7 December 2015 Mr Nguyen, physiotherapist, confirms that the right upper limb elevation and grip strength is reduced when compared the left.

26. On consideration of the available evidence and the descriptors in Impairment Table 2, I am satisfied that, during the claim period, there was a mild functional impact on Ms Lahz’s activities using hands or arms so that a rating of 5 points can be assigned.

    LOWER LIMB FUNCTION

27. At the hearing the advocate for the Respondent accepted the conclusion of the SSCSD that, during the claim period, Ms Lahz suffered a moderate functional impact on activities using lower limbs.

28. Ms Lahz told the Tribunal that in about March 2015 she was able to walk around the house and manage three front steps with the help of a cane and no other assistance. She explained that that twice a week she would accompany her husband to the local shopping centre using public transport. She was able walk to the bus, walk from the bus to the shopping centre, walk around the shopping centre for at least 30 minutes, walk back to the bus and walk home from the bus (about one kilometre). She would walk slowly with frequent rests but apart from her cane, she usually did not require other assistance.  She stated that she was able to get out of a chair without assistance but could only stand for about five minutes.

29. Ms Lahz told the SSCSD that she avoided stairs, was able to stand from a seated position without assistance and was able to remain standing for more than 10 minutes.

30. As a result of a complaint by Ms Lahz of persistent right foot pain, a bone scan performed on 2 March 2015 revealed a stress fracture of the right “3rd metatarsal head and medial cuneiform”.  Treatment included a “camboot”, which was to be worn for six weeks.

31. In an undated Centrelink Medical Report following an examination on 9 March 2015 Dr Jessa, GP, lists “cerebral haemorrhage / CVA” as a medical condition with most impact, describes current symptoms “uses walking aid due to hemiparesis and osteoporosis’’ but provides no other details with respect to functional impact on activities using lower limbs.

32. In the letter of 7 December 2015 Mr Nguyen notes, inter alia, the following findings:

    “ambulates independently with x1 walking stick on L side …, independent with transfers…quads strength 4/5 R vs 5/5 L…..able to maintain balance on both feet….”

33. In a letter dated 11 Jan 2016 Dr Cordato notes that a recent CT brain scan shows “right posterior cerebral artery infarct and left basal ganglia infarct” and states that “there is right upper and lower limb weakness and reduced functional movement due to her previous stroke which adversely affects her balance and endurance”.

34. Ms Lahz’s self-report of impairment suggests that, during the claim period, she suffered a moderate functional impact on activities using lower limbs which would warrant a rating of 10 points under Impairment Table 3.

35. The difficulty for Ms Lahz is that the available corroborative evidence is incomplete and, in my view, does not adequately address the relevant descriptors in Impairment Table 3.

36. Also, the diagnosis of stress fractures in her right foot just prior to the date of claim would make any assessment of permanent impairment, with respect to lower limb function during the claim period, somewhat unreliable. The stress fractures are clearly an acute injury that would have had an impact on lower limb function during that period and once the fractures healed, lower limb function should have improved.

37. Notwithstanding the difficulties, Ms Lahz presented as a reliable witness and on consideration of the severity of her brain injury as noted in the recent CT scan and the relevant descriptors in Impairment Table 3, I am satisfied that it is likely that her permanent impairment has at least a “moderate” functional impact on activities using lower limbs. This means that a rating of 10 points under Impairment Table 3 is appropriate.

38. Also, I am satisfied that there is no evidence to support a conclusion that during the claim period Ms Lahz suffered a “severe” functional impact on activities using lower limbs.

    BRAIN FUNCTION

39. Ms Lahz told the Tribunal that since her stroke she has significant difficulty with her short term memory. She said that often she can’t remember what she had for breakfast, can’t remember what happened two days ago and forgets words. More recently, her long term memory has also deteriorated. She explained that prior to her stroke, she was an avid reader but now she would scan the Sunday newspaper and rarely read a book because she would usually lose track of the story.

40. Ms Lahz told the SSCSD that she has to be reminded about regular things such as taking her medication.

41. Dr Jessa notes that Ms Lahz has “neurological/ cognitive function problems”.

42. In his letter of 11 January 2016 Dr Cordato states that Ms Lahz has “memory loss” and “difficulty retaining new information”.

43. The corroborative evidence with respect to Ms Lahz’s brain function is clearly incomplete. However, on consideration of all the available evidence, I am satisfied that, during the claim period, Ms Lahz’s brain condition was permanent for the purposes of the Impairment Determination and that she suffered mild difficulties with memory. This means that a rating of 5 points under Impairment Table 7 can be applied.

    OTHER MEDICAL CONDITIONS

44. A CT of the cervical spine performed on 16 March 2015 is reported as showing “cervical spondylosis with degenerative changes”. The relevance of these findings with respect to any functional impairment is unclear and as there is no other relevant clinical evidence, a rating under the Impairment Tables cannot be applied.

45. The SSCSD noted that a report of a bone mineral density study performed on 19 February 2014 confirmed a diagnosis of “osteoporosis” and made several recommendations for treatment. The SSCSD noted that Ms Lahz had not undertaken any of the recommended treatments and concluded that the condition was not fully treated and stabilised so that a rating under the Impairment Tables could not be assigned. I note that a copy of this report was not provided to the Tribunal.

46. Even if I were to accept that during the claim period, Ms Lahz’s “osteoporosis” was permanent for the purposes of the Impairment Determination, there is no evidence of any ongoing functional impairment as a result of this condition.

47. The stress fracture on the right 2^nd metatarsal bone diagnosed by a bone scan in December 2014 was noted to have healed in the subsequent scan performed on 2 March 2015. Also, there is no evidence of any ongoing functional impairment with respect to stress fractures diagnosed in March 2015.

    CONCLUSION

48. Notwithstanding the difficulties with the evidence, I am satisfied that, during the claim period, Ms Lahz had a total rating of 20 points under the Impairment Tables, with 5 points under Table 2, 10 points under Table 3 and 5 points under table 7.

49. This means that during the claim period Ms Lahz satisfied section 94(1)(b) of the Act.

50. However, there is no evidence to support a conclusion that during the claim period Ms Lahz suffered a “severe impairment” as defined in subsection 3B, that is, a rating of 20 points under a single Impairment Table.

51. It follows that as Ms Lahz had not actively participated in a POS prior to the date of claim, she did not satisfy section 94(1)(c) of the Act and therefore did not qualify for DSP.

    DECISION

52. For reasons set out above, the Tribunal is satisfied that, during the claim period, Ms Lahz did not have a “continuing inability to work” as defined in the Act so that she did not satisfy s 94(1)(c) of the Act and did not qualify for DSP. The decision under review is affirmed.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member.

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

Associate

Dated 1 August 2016

Date(s) of hearing	5 July 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services