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

[2020] AATA 2208

Law and Secretary, Department of Social Services (Social services second review) [2020] AATA 2208 (13 July 2020)

Division:GENERAL DIVISION

File Number:          2019/5926

Re:Joanne Law

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:13 July 2020

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – spinal condition – shoulder condition – knee condition – depression – other conditions – whether the impairments are permanent – whether applicant has severe functional impairment – Tribunal satisfied applicant attracts a total of 15 points under Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Dr L Bygrave, Member

13 July 2020

INTRODUCTION

1. Ms Joanne Law lodged a claim for disability support pension on 11 December 2017.

2. Services Australia (the Agency),[1] both initially and on review, rejected Ms Law’s claim for disability support pension because she did not meet the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act).

   [1] On 26 May 2019, the Prime Minister announced the establishment of Services Australia and, on 1 February 2020, it became an executive agency in the Social Services portfolio.

3. On 13 March 2019, Ms Law applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 29 May 2019, the SSCSD affirmed the decision of Services Australia.

4. Ms Law subsequently made an application to the General Division of the Tribunal for review.

5. The application was heard by the Tribunal in Sydney on 11 June 2020. Ms Law attended the hearing by conference telephone and provided oral evidence to the Tribunal.

   RELEVANT LEGISLATION

   Qualification for disability support pension

6. To qualify for disability support pension, Ms Law must satisfy the criteria in subsection 94(1) of the Act, which requires her to show she has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment rating of 20 or more points according to the Impairment Tables; and

   (c)a continuing inability to work.

7. Further, Ms Law must satisfy these criteria on the date she applied for disability support pension on 11 December 2017 or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the claim period).

   Rules for assigning impairment ratings

8. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables Determination).

9. The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.

10. An impairment rating can only be given to a medical condition that is permanent.  Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4).

11. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; 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: subsection 6(5).

12. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6).

13. Relevantly, the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis:

    …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).

14. The Agency concedes, and I agree, that Ms Law has medical conditions that cause impairment and therefore, she satisfied paragraph 94(1)(a) of the Act during the claim periods.

15. It follows that the determinative issues for the Tribunal in this matter are whether, during the claim period, Ms Law had:

    ·an impairment rating of 20 points or more under the Impairment Tables; and

    ·a continuing inability to work as defined in subsection 94(2) of the Act.

    CONSIDERATION

    Issue 1 – Does Ms Law have an impairment rating of 20 or more points under the Impairment Tables?

    Spine, shoulder and arm conditions

16. Ms Law injured her left shoulder and cervical spine at her workplace on 27 February 2012. This is verified by the following evidence:

    ·Medical imaging reports of Ms Law’s left shoulder and cervical spine dated between 29 February 2012 and 26 June 2013.

    ·A consultation report by Dr Frank G Machart (orthopaedic surgeon) on 11 May 2012, which opined that Ms Law suffered a ‘[c]ervical spine injury on the background of asymptomatic spondylosis’.[2]

    ·Reports by Dr Geoffrey Needham (pain management specialist) dated 16 October 2012, 30 October 2012 and 12 February 2013.

    ·A report by Dr M Dowla (neurologist) on 2 March 2013 that opined Ms Law’s ‘left arm pain is a combination of cervical C6 root initiation and also cuff insertional tendinopathy’.[3]

    ·A report by Dr James van Gelder (neurosurgeon) dated 24 July 2013 that referred to an ‘updated MRI scan [that] shows a left posterolateral C5-6 intervertebral disc protrusion…and various other disc bulges.’[4]

    ·Medical reports by Dr Jasvinder Kheray (general practitioner) dated 5 December 2012 that diagnosed Ms Law with ‘left rotator cuff injury – with bursitis tendonitis & impingement with cervical pain’[5] and 22 August 2013 that diagnosed ‘cervical and both shoulders injury’.[6]

    [2] Exhibit T-T8, page 138.

    [3] Exhibit T-T11, page 161.

    [4] Exhibit T-T11, page 163.

    [5] Exhibit T-T7.

    [6] Exhibit T-T10.

17. The reports of Dr Machart, Dr Needham and Dr van Gelder set out Ms Law’s previous treatments and recommended her injuries be treated conservatively with physiotherapy, hydrotherapy and pain medication. Dr Machart did not recommend surgical intervention.

18. Ms Law applied for disability support pension in 2014 and, at the request of the Agency, Dr Peter Cook (occupational physician) undertook a medical review of Ms Law and provided a report on 9 April 2015. In this report, Dr Cook stated that Ms Law:

    …has chronic pain in her neck and left shoulder with sensory symptoms in her left upper limb. There are abnormalities on the imaging which are non-specific and may or may not be the cause of her symptoms. She has been thoroughly investigated and treated and yet the pain persists.[7]

    [7] Exhibit T-T25, page 267.

19. Dr Cook assessed whether Ms Law should be assigned 10 points or 20 points for her spinal condition; he concluded that he could ‘see no way of deciding between 10 and 20 points apart from [Ms Law’s] self-report’ and thought this was ‘most consistent with 20 points’.[8]

    [8] Exhibit T-T25, page 268.

20. On 17 May 2016, Ms Law suffered further injury when she fell in a shopping centre. A report by Dr Peter Giblin (orthopaedic surgeon) dated 10 July 2017 made a ‘provisional diagnosis of a soft tissue injury to her right pelvic area and her right shoulder area’ and recommended conservative treatment.[9]

    [9] Exhibit T-T18, page 229.

21. CT scans of Ms Law’s right hip and right shoulder were reported by Dr Gerrie Potgieter (radiologist) on 17 July 2017 as ‘unremarkable’ although noted ‘stranding in the trochanteric bursa, suggestive of trochanteric bursitis’ and ‘minimal degenerative changes noted at the glenohumeral articulation’.[10] An MRI report of Ms Law’s right hip on 13 October 2017 by Dr David Ho (radiologist) concluded she had ‘[s]mall hip joint effusion’, and trochanteric bursitis and gluteus minimus tendinopathy were present.[11]

    [10] Exhibit T-T18, page 233.

    [11] Exhibit T-T18, page 236.

22. Dr Melvin Chew (radiologist) concluded in a CT scan of Ms Law’s lumbosacral spine on 11 September 2017 that she had:

    Grade 1 spondylolisthesis of L5/S1 level with bilateral L5 pars interarticularis defects. Pseudo disc bulging with high-grade bilateral foraminal stenoses and impingement of the exiting L5 nerve roots.[12]

    [12] Exhibit T-T18, page 234.

23. In her claim for disability support pension made on 11 December 2017, Ms Law listed her disabilities as including bulging discs in her neck and lower back, and tears in her right and left shoulder. She also noted that she may undertake spinal surgery in the future.

24. A Job Capacity Assessment (JCA) report dated 30 January 2019, more than ten months after the claim period, assessed Ms Law’s spinal and shoulder/upper limb conditions as fully diagnosed, fully treated and fully stabilised; however, the JCA concluded the medical evidence showed Ms Law’s neck condition was only fully diagnosed, and not fully treated and fully stabilised.

25. On 13 January 2020, 22 months after the claim period, Dr Kheray provided an additional medical report outlining Ms Law’s health conditions and their impact on her day to day activities. Dr Kheray set out the following information about Ms Law’s shoulder and cervical injury, and her spinal condition:

    Upper limbs (both shoulder injury) cervical injury work related injury in 2012, with bursitis and rotator cuff injury. Has p20 deducted functional impact and unable to lift her arms above shoulder or take backwards. This is fluctuating cervical MRI has C3 C4, C5-6, C6-C7 degeneration with moderate cord stenosis. She has daily pains with frequent cervical pain and stiffness and headaches, finding day to day tasks like shopping, chopping, cooking and opening jars difficult.

    At present, she is on pain killers and has had multiple cortisone injections and rehab & physiotherapy.

    Spinal function with both lower limb function

    She has chronic pain lumbosacral due to L5-S nerve compression and stenosis impacting S, and pain right hip & leg. Seeing neurosurgeon Prof. van Gelder. She would require spinal fusion once she gets cardiac clearance. Unable to walk/shop/home duties more than 20 minutes…[13]

    [13] Exhibit A9.

26. Ms Law also provided the Tribunal with additional reports from Dr Machart and Dr van Gelder; however, all of these reports are dated in 2019 and 2020, more than 12 months after the claim period. I note that none of these additional reports provide any information about Ms Law’s spinal and upper limb conditions during the claim period.

27. At the Tribunal hearing, Ms Law gave extensive oral evidence about her injuries since 2012 and her spinal, neck and upper limb conditions. Ms Law said that she has continued to take pain medication and participate in physiotherapy since 2012. She referred to a letter dated 25 November 2019 that shows her periodic attendance for physiotherapy for her neck, shoulders and lower back pain from March 2012 to July 2019.[14] Ms Law said she has continued to see Dr Machart for review of her shoulders, Dr van Gelder for review of her neck and spine, and Dr Needham for pain management. While surgery is an option, this currently requires her to lose further weight and to be approved by her cardiologist (although I note her heart condition was not diagnosed until 2019, after the relevant claim period).

    [14] Exhibit A7.

28. Ms Law explained that she injured her left shoulder and neck in 2012 but it was not until 2016, when she fell in a shopping centre, that she injured her back and has experienced significant pain and limited functional capacity.

29. Ms Law told the Tribunal that she currently shares a two-bedroom apartment with a flat-mate. Access to the apartment is by 28 stairs. She relies on her flat-mate to undertake household chores such as cleaning and laundry, and her neighbour assists her with tasks such as grocery shopping. She is able to shower and dress independently (although she has difficulties with buttons and zips), and her neighbour assists with washing her hair. She is able to sit on a chair and raise her leg to tie her shoelaces but cannot bend down to her knees from a standing position. She said she is able to hold and use a pen/pencil, unscrew a larger lid and lift a half-full kettle, although she noted that her carrying limit was two kilograms in December 2017.

30. Ms Law confirmed that she was able to walk for approximately 30 minutes using her walking frame and accompanied by her neighbour, take public transport and drive her car for short periods during the claim period. She said she was unable to sit for more than 15 minutes. However, I note that Ms Law was able to go on a cruise in 2017, and travel to Turkey in June 2018 and July 2019 to visit a friend who was terminally ill. Ms Law accepted that this travel involved her taking flights for more than 10 hours and said she took ‘lots of pain relief’ and travelled with the assistance of a friend. 

31. Based on the evidence, I am satisfied that Ms Law’s spinal condition was fully diagnosed, fully treated and fully stabilised during the claim period. I make this finding noting that the medical evidence is not consistent: there is some evidence that Ms Law’s condition should continue to be treated conservatively and some evidence that she may have spinal fusion surgery at some time in the future if she is able to lose weight and is cleared by her cardiologist.

32. Having regard to Table 4 – Spinal Function, I assign 10 points for this condition under the Impairment Tables Determination. In making this finding, I note the report of Dr Cook dated 9 April 2015, which accepted assigning 20 points for Ms Law’s spinal condition on the basis of her self-reporting of her functional capacity. However, I cannot be satisfied that Ms Law meets the criteria for 20 points. In particular, I find that Ms Law’s reporting that she is unable to sit for 30 minutes inconsistent with her capacity to take more than 10-hour flights in 2018 and 2019.

33. I am satisfied that the medical evidence shows Ms Law’s upper limb conditions were fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with Table 2 – Upper Limb Function, I am satisfied that Ms Law’s functional capacity is consistent with 5 points under the Impairment Tables Determination.

    Depression

34. At the Tribunal hearing, Ms Law said she was diagnosed with depression in 2002. She noted that her condition worsened after she was injured in 2012 and she re-commenced taking anti-depressant medication in 2014. Ms Law said she began seeing Ms Ghada Tiba (registered psychologist) in late 2018.

35. A report by Ms Tiba dated 8 November 2019, almost 23 months after Ms Law lodged her claim for disability support pension, described Ms Law’s physical health conditions and symptoms, and diagnosed Ms Law with depression and anxiety.

36. Most recently, Dr Kheray provided a report on 13 January 2020 that stated Ms Law has depression, which is treated with medication and seeing a psychologist. Dr Kheray noted Ms Law’s mental health condition is ‘impacting her self-care, concentration & anger, frustration with irrational decision making’ and has a moderate impact on her day to day function.[15] I note this report by Dr Kheray is 22 months after the claim period and makes no reference either to Ms Law’s treatment or her capacity to function during the claim period.

    [15] Exhibit A9.

37. Unfortunately, there is no corroborating diagnosis of Ms Law’s mental health condition from either a psychiatrist or clinical psychologist as required by Table 5 – Mental Health Function of the Impairment Tables Determination. This means I am unable to be satisfied that Ms Law’s condition of depression was fully diagnosed, fully treated and fully stabilised during the claim period. For this reason, I am unable to assign points for this condition in accordance with the Impairment Tables Determination.

    Knees condition

38. A medical letter from Dr Kheray dated 19 September 2014 noted Ms Law suffered from ‘osteoarthritis both knees’.[16] This is further verified in an x-ray report of both knees by Dr Warwick Thomas (radiologist) on 9 January 2015, which concluded Ms Law had ‘[m]ild tricompartmental OA, changes most marked at the left medial compartment’.[17]

    [16] Exhibit T-T13, page 173.

    [17] Exhibit T-T15, page 182.

39. Ms Law told the Tribunal she has been reviewed by a specialist who recommended surgery. She did not provide a report from the specialist to the Tribunal.

40. Based on the available evidence, I am satisfied that Ms Law’s knees condition was fully diagnosed, but not fully treated or fully stabilised during the claim period. As Ms Law’s condition was not permanent, I am unable to assign points in accordance with the Impairment Tables Determination.

    Other conditions

41. In a report dated 13 January 2020, 22 months after the claim period, Dr Kheray stated that in April 2019, Ms Law had ‘myocardial infarction secondary to her emphysema/hypertension and dyslipidaemia requiring stenting’.[18] Ms Law confirmed to the Tribunal that her heart condition commenced in 2019, after the claim period. I am satisfied that this condition cannot be considered in relation to Ms Law’s claim for disability support pension as it occurred after the claim period. I also note that there is very limited medical evidence before the Tribunal in relation to Ms Law’s condition of emphysema, which means I cannot be satisfied the condition was permanent in accordance with the Impairment Tables Determination, during the claim period.

    [18] Exhibit A9.

    CONCLUSION

42. For the reasons set out above, I am satisfied that Ms Law did not meet the requirements of paragraph 94(1)(b) of the Act during the claim period because her impairments were not rated at 20 points or more under the Impairment Tables.

43. As I find that Ms Law did not qualify for the disability support pension during the claim period, it is not necessary to consider whether she had a continuing inability to work.

    DECISION

44. The decision under review is affirmed.

I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 13 July 2020

Date of hearing:	11 June 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Mr George Lozynsky, Services Australia