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

[2016] AATA 440

Malcolm and Secretary, Department of Social Services (Social services second review) [2016] AATA 440 (29 June 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6600
Re	Janice Malcolm
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	29 June 2016
Place	Sydney

The reviewable decision of the Social Security and Child Support Division of the Administrative Appeals Tribunal dated 24 November 2015 is set aside and in substitution the Tribunal decides that Ms Malcolm satisfied subsections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) at the date of her claim on 11 May 2015.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – multiple conditions – whether medical conditions were fully diagnosed, treated and stabilised – impairment rating of more than 20 points – whether continuing inability to work – program of support completed – applicant has a continuing inability to work – decision set aside and substituted

LEGISLATION

Social Security Act 1991 (Cth) section 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr L Bygrave, Member

29 June 2016

1. On 11 May 2015, Ms Janice Malcolm lodged a claim for disability support pension (DSP) on the basis that she suffered several medical conditions that were having an impact on her ability to function.

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

3. In a decision dated 24 November 2015, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Ms Malcolm had medical conditions that can be rated 20 points or more under the Impairment Tables. However, because Ms Malcolm had not actively participated in a program of support as set out in subsection 94(5) of the Act, she could not satisfy this requirement and consequently could not qualify for DSP.

4. On 18 December 2015, Ms Malcolm applied to the General Division of the Tribunal for a second review of decision.

5. The matter was heard in Sydney on 9 June 2016. Ms Malcolm was unrepresented and gave sworn evidence to the Tribunal by telephone.

   RELEVANT LEGISLATION AND ISSUES

6. In order to qualify for DSP, Ms Malcolm must satisfy the requirements of section 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirement of the Social Security (Administration) Act 1999 (Cth), that is between 11 May 2015 and 10 August 2015 (the claim period).

7. 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.

8. The Respondent concedes and the Tribunal agrees that Ms Malcolm suffers medical conditions that cause impairment and therefore, satisfied subsection 94(1)(a) of the Act at the time of her claim for DSP.

9. It follows that the determinative issues in this matter are whether, during the claim period, Ms Malcolm had:

   (i)an impairment rating of 20 points or more under the Impairment Tables; and

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

   Issue I: Does Ms Malcolm have medical conditions that can be rated at 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Act?

10. 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)).

11. 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 to persist for more than two years (paragraph 6(4)(d)).

12. 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”.

13. The Introduction to Table 5 of the Impairment 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 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)”.

14. The medical conditions of Ms Malcolm set out in the claim form dated 11 May 2015 include:

    ·an upper limb condition (rotator cuff injury to right shoulder and broken bones in left hand);

    ·a tinnitus, hearing loss and vertigo condition;

    ·a spinal condition;

    ·a mental health condition; and

    ·other conditions including osteoporosis and osteoarthritis, and a gynaecological condition (ovarian cyst (FDTS)).

15. In the Statement of Facts, Issues and Contentions (the Statement) submitted by the Respondent on 25 May 2016, the Respondent submits that during the claim period, Ms Malcolm had a total rating of 0 points under the Impairment Tables and therefore, had not satisfied subsection 94(1)(b) of the Act. The Respondent contends that this is because, other than Ms Malcolm’s ovarian cyst, none of her other medical conditions were fully diagnosed, treated and stabilised during the claim period.

16. I now consider each of these medical conditions and their relevant rating under the Impairment Tables.

17. In considering Ms Malcolm’s medical conditions, I rely on all the medical evidence before me, including a letter by Dr Daryl Chamberlain (Medical Practitioner) dated 29 March 2016.

18. I note the Respondent’s submission in the Statement dated 25 May 2016 that Dr Chamberlain’s letter of 29 March 2016 should not be given much weight due to its brevity.

19. Dr Chamberlain has been Ms Malcolm’s medical practitioner since December 2011. I have before me numerous medical reports and medical certificates by Dr Chamberlain in relation to Ms Malcolm’s medical conditions dating from 29 December 2011 to 4 April 2016. I further note that Dr Chamberlain begins his letter dated 29 March 2016 with “Having reviewed Janice’s [Ms Malcolm’s] medical history”. I am therefore satisfied that Dr Chamberlain in his letter of 29 March 2016 is well qualified to assess Ms Malcolm’s medical conditions in relation to the Impairment Tables during the claim period.

    Upper limb condition

20. Ms Malcolm has two conditions impacting on the function of her upper limb – a rotator cuff injury in her right shoulder and an old fracture to the left hand.

21. Ms Malcolm’s sustained a rotator cuff injury in her right shoulder in 2011 as a result of a heavy fall. I rely on medical reports by Dr M Crouch (Specialist Radiologist) dated 1 April 2011, Dr L H Raj Wijetunga (Radiologist) dated 3 November 2011, Dr M Parker (Radiologist) dated 8 March 2012 and Dr Hu dated 19 April 2012. I also rely on a medical report by Dr R Breit (Orthopaedic Surgeon) dated 10 May 2012 in which an MRI reveals a fracture at the “greater tuberosity and some damage to the rotator cuff”.

22. In a medical report dated 28 August 2012, Dr Chamberlain reports that current treatment [for the rights shoulder] includes “analgesics and physiotherapy” and planned treatment includes “the same”.

23. Ms Malcolm fractured her left hand in a car accident. A report by Dr Chamberlain on 18 June 2014 notes a chronic weakness (old injury) to Ms Malcolm’s left hand.

24. The Respondent submits that Ms Malcolm’s upper limb medical condition was not fully treated and fully stabilised during the claim period.

25. In a letter dated 29 March 2016, Dr Chamberlain assesses Ms Malcolm’s shoulder injury as “The condition is stable, fully treated and unlikely to change. Has not improved since May 2015”.

26. In evidence on 9 June 2016, Ms Malcolm described that her right shoulder has been treated with medication and cortisone injections. She has seen an orthopaedic surgeon. She stopped physiotherapy as it worsened her back pain. She cannot sweep or vacuum, hang washing on the line or lift any containers that weigh more than 600 mls. She can dress and wash herself but with significant difficulty.

27. Based on the medical evidence before me, I am satisfied that Ms Malcolm’s upper limb condition was fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with the information at Table 2 – Upper Limb Function, Ms Malcolm’s upper limb condition has a moderate functional impact on activities using her hands or arms and I assign an impairment rating of 10 points for Ms Malcolm’s upper limb condition.

    Tinnitus, hearing loss and vertigo condition

28. Ms Malcolm has reported issues with her ears since she fell from a balcony in 2004.

29. A medical report by Dr Hunter (Ear, Nose and Throat Specialist) dated 27 October 2011 confirmed Ms Malcolm has tinnitus and mild hearing loss. Medical certificates from Dr Chamberlain dated 26 February 2013 and 17 June 2013, and a medical report by Dr Chamberlain dated 27 January 2015 report Ms Malcolm suffers from vertigo which is treated with medication (Stemetil and Valium).

30. The Respondent submits that Ms Malcolm’s tinnitus, hearing loss and vertigo condition was not fully diagnosed, treated and stabilised during the claim period.

31. At the hearing on 9 June 2016, Ms Malcolm described the impact of tinnitus as a constant noise in her ears and stated that she required medication (Alepam) to help her sleep. She could hear the TV when it was at full volume. Ms Malcolm reported regularly (sometimes two-three times per day) feeling dizzy from her condition of vertigo and that this limited her ability to leave the house. When she felt dizziness beginning, she would take medication (Serc) and lie down. If she was out, she would try to get home as quickly as possible.

32. In his letter dated 29 March 2016, Dr Chamberlain assesses Ms Malcolm’s hearing loss as “chronic, disabling and constant”. In view of the medical evidence before me, I find that Ms Malcolm’s medical condition of tinnitus, hearing loss and vertigo was fully diagnosed, treated and stabilised during the claim period. In accordance with the information at Table 11 – Hearing and other Functions of the Ear, I find that Ms Malcolm’s condition has a mild functional impact on activities involving hearing (communication) function and creates difficulty with regular period of dizziness. I assign an impairment rating of 5 points for this condition.

    Neck and spine conditions

33. In a medical report dated 27 January 2015, Dr Chamberlain reports that Dr Al-Khawaja (Neurosurgeon) reports that Ms Malcolm has the following neck and spine conditions:

    ·spinal degeneration with collapse of L1 vertebra;

    ·cervical spondylosis.

34. Dr Al-Khawaja’s (Neurosurgeon) report dated 19 December 2014 states that a CT scan of Ms Malcolm’s lumbar spine reveals a fracture of L1 vertebral body 30 per cent loss of height. An MRI of Ms Malcolm’s cervical spine dated 7 January 2015 shows mild left C6/7 and mild right C3/4 uncovertebral disease, both causing mild foraminal narrowing, and multilevel mild disc disease and broad-based disc bulge without spinal canal stenosis.

35. Dr Chamberlain referred Ms Malcolm to the Pain Clinic, Nepean Hospital on 2 April 2015 for treatment. Ms Malcolm attended the Pain Clinic on 23 November 2015.

36. The Respondent contends that Ms Malcolm’s back and neck conditions were not fully treated and stabilised during the claim period. This is because Ms Malcolm did not attend the Pain Clinic until 23 November 2015, which was outside the claim period. The Respondent further notes in the Statement dated 25 May 2016 that “there was no evidence that suggests treatment via the pain management clinic was unlikely to result in significant functional improvement to a level enabling the Applicant to undertake work in the next 2 years”.

37. In evidence on 9 June 2016, Ms Malcolm explained that it was very difficult for her to get to the Pain Clinic as she was required to take two buses. She said that travelling on buses always made her back condition worse. Ms Malcolm described taking medication (Nexium, Keflex and Codapane Forte) to manage her pain, which indicates that her back and neck conditions were fully treated during the claim period.

38. In his letter dated 29 March 2016, Dr Chamberlain describes Ms Malcolm’s spine condition as “Chronic disabling and fully treated. Stable with no likelihood of improvement”.

39. In view of the medical evidence before me, I find that Ms Malcolm’s spine and neck medical condition was fully diagnosed, treated and stabilised during the claim period. In accordance with the information at Table 4 – Spinal Function, I am satisfied that Ms Malcolm’s condition has a moderate functional impact on her activities involving spinal function and assign an impairment rating of 10 points for this condition.

    Mental health condition

40. Ms Malcolm has been treated for major depression by medication (Efexor-XR) since 2005. A discharge summary of Mackay Base Hospital dated 9 June 2010 reports diagnosis of situational crisis and depression.

41. A report dated 18 June 2014 by Dr Chamberlain reports anxiety and depression, and a referral dated 2 April 2015 by Dr Chamberlain reports a prescription of Endone. On 8 September 2015, Dr Chamberlain referred Ms Malcolm to Nepean-Blue PHN for depression, anxiety disorder and alcohol/drug use disorder. Ms Kocan (Clinical Psychologist) assessed Ms Malcolm on 24 September 2015. In a report provided to the Tribunal dated 1 April 2016, Ms Kocan states that Ms Malcolm has severe levels of depression, anxiety and stress, and recommends therapy.

42. In evidence on 9 June 2016, Ms Malcolm stated that she had attempted suicide a number of times including a week ago. She reported feeling low and wanting to escape the ongoing physical pain, and said talking about these issues made her upset.

43. I accept that Ms Kocan is qualified to make a diagnosis about Ms Malcolm’s mental health and the findings in her report dated 1 April 2016. I also accept the assessment by Dr Chamberlain in a letter dated 4 April 2016 that rates Ms Malcolm’s mental health impairment as 10 points.

44. However, I agree with the Respondent in the Statement dated 25 May 2016 that this assessment of Ms Malcolm’s mental health condition on 24 September 2015 took place after the claim period. Therefore, for the purposes of this review, I do not find that Ms Malcolm’s mental health can be considered to be fully diagnosed, treated and stabilised during the claim period.

    Other conditions

45. In a report dated 29 December 2011, Dr Chamberlain reports Ms Malcolm had a “cyst on ovary”. The Respondent submits that this condition is permanent and has a zero point rating under Table 10 – Digestive and Reproductive Function. I accept that this condition has not have a functional impact on Ms Malcolm.

46. A bone density scan on 17 October 2012 reveals Ms Malcolm has significant osteoporosis and in a medical report dated 17 June 2014, Dr Chamberlain reports Ms Malcolm has osteoarthritis. I accept the Respondent’s submission that there is insufficient medical evidence before me to find that Ms Malcolm’s osteoarthritis was fully diagnosed, treated and stabilised during the claim period.

    Conclusion

47. In accordance with my findings at paragraphs 27, 32 and 39 above, Ms Malcolm has a total of 25 points under the Impairment Tables and so has met the requirement of subsection 94(1)(b) for an impairment rating of 20 points or more.

    Issue II: Does Ms Malcolm have a continuing inability to work as required by s 94(1)(c) of the Act?

48. Subsection 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 program of support within the meaning of subsection (3C)”. 

49. There is no evidence before me that Ms Malcolm has a “severe impairment” as set out in subsection 94(3B) of the Act as she does not have 20 points or more under a single Impairment Table. This means that Ms Malcolm must have participated in a program of support (POS), as defined in subsection 94(5) of the Act, before DSP can be granted to her.

50. The Respondent concedes in the Statement dated 25 May 2016 that Ms Malcolm has participated in a POS.

51. The next issue I must consider is whether, as required by subsection 94(2)(a), Ms Malcolm’s impairment is of itself sufficient to prevent her from doing any work independently of a POS during the next two years.

52. In the Statement dated 25 May 2016 the Respondent contends that Ms Malcolm is able to work at least 15 hours per week within the next two years. I particularly note the Respondent’s submissions on this issue at paragraphs 132 to 140 of the Statement.

53. I have also read the Job Capability Assessment Report for Ms Malcolm dated 14 July 2015, which stated Ms Malcolm’s baseline work capacity as 8-14 hours per week and her capacity to work within two years with intervention as 15-22 hours per week.

54. In evidence on 9 June 2016, Ms Malcolm described being in constant pain and rarely leaving the house due to her medical conditions. She also explained the medications that she was on to manage her pain and medical conditions.

55. I also consider the medical certificate by Dr Chamberlain dated 14 August 2015, that states Ms Malcolm “has multiple medical conditions that render [her] unfit to work. Her conditions are fully treated, stabilised and fully diagnosed and there [is] nothing further that can be done to assist her recovery”. While this medical certificate is dated four days after the final date of the claim period, which is 10 August 2015, I rely on this medical certificate together with the numerous medical reports provided by Dr Chamberlain about Ms Malcolm’s medical conditions dating from December 2011 and therefore consider that it is relevant to the claim period.

56. On the basis of all the medical evidence before me, which has been extensively set out above and in my findings at paragraphs 27, 32 and 39, I find that Ms Malcolm’s impairment is of itself sufficient to prevent her from doing any work independently of a POS during the next two years. I am therefore satisfied that the requirement in subsection 94(2)(a) is met.

57. I must now consider whether, as required by subsections 94(2)(b)(i) and (ii), Ms Malcolm’s impairment is of itself sufficient to prevent her from undertaking a training activity during the next two years; or because of her impairment, any training activity is unlikely to enable Ms Malcolm to do any work independently of a POS within the next two years.

58. On the basis of all the medical evidence before me, which has been extensively set out above and in my findings at paragraphs 27, 32 and 39, I find that Ms Malcolm’s impairment is of itself sufficient to prevent her from undertaking a training activity during the next two years and that any training activity is unlikely to enable Ms Malcolm to do any work independently of a POS during the next two years. I am therefore satisfied that the requirement in subsection 94(2)(b) is met.

1. I find that Ms Malcolm has a continuing inability to work as required by subsection 94(1)(c) of the Act.

   CONCLUSION

2. For the reasons set out above, I am satisfied that Ms Malcolm was qualified to receive DSP on the date of her claim, 11 May 2015 or within 13 weeks of this date.

   DECISION

3. The reviewable decision of the SSCSD dated 24 November 2015 is set aside and in substitution the Tribunal decides that Ms Malcolm satisfied subsections 94(1)(a), (b) and (c) of the Act at the date of her claim on 11 May 2015.

I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated 29 June 2016

Date(s) of hearing	9 June 2016
Applicant	By phone
Solicitors for the Respondent	Department of Human Services