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

[2024] AATA 3022

Mangino and Secretary, Department of Social Services (Social services second review) [2024] AATA 3022 (27 August 2024)

Division:GENERAL DIVISION

File Number(s):2023/2223      

Re:Tina Mangino  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member Lee Benjamin

Date:27 August 2024

Place:Brisbane

The decision under review is affirmed.

.............................[SGD]...........................................

Member Lee Benjamin

Catchwords

SOCIAL SERVICES - Eligibility for Disability Support Pension - Appeal of decision of Social Services and Child Support Division - where purported impairments included lumber and cervical spinal disorder conditions - where no impairment points can be allocated - decision 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

Member Lee Benjamin

27 August 2024

WHAT IS THIS DECISION ABOUT?

1. Ms Mangino lodged the claim for Disability Support Pension (DSP) on 30 March 2022. The claim was rejected by Services Australia and, on review, by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). There is no dispute that Ms Mangino has lumber and cervical spinal disorder conditions, and that such conditions were fully diagnosed, treated and stabilised in the qualification period. The question for the Tribunal is whether, and to what extent, these conditions attract an impairment rating or points under the applicable rules. In my view, having regard to Ms Mangino’s self-reported medical history and the activities that she says she is able to physically undertake, I am not satisfied that any points can be allocated to either the lumber spinal disorder condition or the cervical spinal disorder condition, in accordance with the relevant rules. Accordingly, I find that Ms Mangino did not meet the DSP eligibility conditions in the qualification period.

   WHAT HAPPENED?[1]

   [1] The Secretary’s Statement of Facts, Issues and Contentions helpfully sets out the procedural history and background information (Exhibit R1, p 1-2, para 3-13).  

2. Ms Mangino is 56 years of age.

3. On 30 March 2022, Ms Mangino lodged the claim for the DSP which is the subject of this application. The claim was lodged in respect of a “de-generative spinal condition, compression fracture cervical spine, epicondylitis-right and migraine”.

4. On 7 April 2022, the Agency rejected Ms Mangino’s claim for the DSP.

5. On 27 September 2022, Ms Mangino sought internal review of the decision to reject her claim for the DSP.

6. On 14 November 2022, the original decision was affirmed by an Authorised Review Officer (ARO). The Secretary says that the ARO’s findings were consistent with a Medical Eligibility Assessment dated 5 April 2022.

7. On 30 November 2022, Ms Mangino applied to AAT1 for review.

8. On 1 March 2023, the AAT1 affirmed the decision under review. The Tribunal found that:

   ·Ms Mangino’s migraines and anxiety were not fully diagnosed, treated and stabilised during the qualification period because they had not been diagnosed by an appropriately qualified medical practitioner;  

   ·Ms Mangino’s spinal disorder condition was fully diagnosed, but not fully treated and stabilised at the time of her claim because she had not engaged in any other treatment except for analgesics and a “TENS machine” and she had not been seen by a specialist; and

   ·Overall, none of Ms Mangino’s conditions warranted an impairment rating, and was unnecessary to consider any continuing inability to work.

9. On 27 March 2023, Ms Mangino sought review of the AAT1 decision by General Division of the Administrative Appeals Tribunal (AAT2).

10. On 23 February 2023, Ms Mangino filed further evidence in support of her application for review.

11. On 8 January 2024, the Secretary obtained an opinion from a General Practitioner within the Health Practitioners Advisory Unit (HPAU).

12. Between 8 May 2023 and 8 January 2024, Ms Mangino provided six pieces of further evidence from Dr Tim Lloyd-Morgan, General Practitioner and Joanne Butterfield, General Practitioner.

    WHAT QUESTIONS NEED TO BE ANSWERED?

13. The primary requirements[2] that must be met in order to qualify for the DSP are:[3]

    (a)a physical, intellectual or psychiatric impairment (paragraph 94(1)(a)); and

    (b)a fully diagnosed, treated and stabilised condition, with an impairment which attracts an impairment rating of 20 points or more under the Impairment Tables (paragraph 94(1)(b));[4] and

    (c)a continuing inability to work (paragraph 94(1)(c)).

    [2] See section 94 of the Social Security Act 1991 (Cth) (the Act). There are other requirements apart from the age and residency qualification criteria contained in paragraphs 94(1)(d), (e) and (ea) of the Act.

    [3] Ms Mangino’s DSP claim must be assessed based on her medical conditions as at the date of claim or within 13 weeks of that time. As Ms Mangino lodged her claim for the DSP on 30 March 2022, the period for this Tribunal’s consideration is 30 March 2022 to 29 June 2022 (Qualification Period) per Schedule 2, clause 4(1) of the Social Security (Administration) Act 1999 (Cth) (Administration Act) (Exhibit R1, p 3, para 18).

    [4] Under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Determination).

14. The qualification criteria set out in subsection 94(1) of the Act are conjunctive, and each element must be satisfied before a person can be found to be qualified for the DSP.

15. In this application, there is no dispute between the parties that Ms Mangino’s migraine, anxiety and lumber and cervical spinal disorder conditions constitute an impairment for the purposes of paragraph 94(1)(a).[5] At the hearing, however, Ms Mangino conceded (consistent with the Secretary’s contentions)[6] that her migraine and anxiety conditions were not fully diagnosed, treated and stabilised during the Qualification Period. Accordingly, Ms Mangino did not press a claim in respect of those conditions. It follows that Ms Mangino’s lumber and cervical spinal disorder conditions are the only conditions that remain the subject of her application.

    [5] Exhibit R1, p 8, para 38.

    [6] Exhibit R1, p 8, para 39-40.

16. The first question for the Tribunal is whether Ms Mangino’s lumber and cervical spinal disorder condition impairments attract 20 points or more under the Impairment Tables - paragraph 94(1)(b) of the Act. If the answer to the first question is no, Ms Mangino will not meet the eligibility requirements for DSP and that will be the end of the matter. If the answer to the first question is yes, then the second question is whether Ms Mangino has a continuing inability to work.

    WHAT ARE THE ANSWERS TO THE QUESTIONS?       

17. In my view (and I find that):

    ·Ms Mangino’s lumber and cervical spinal disorder conditions were fully diagnosed, treated and stabilised in the Qualification Period; and

    ·Ms Mangino’s lumber and cervical spinal disorder conditions do not attract (either alone or combined) 20 points or more under the Impairment Tables.

18. Accordingly, the answer to the first question is no. It is unnecessary for me to consider the second question regarding continuing inability to work. Ms Mangino does not meet the eligibility requirements for the DSP.

    WHY IS THIS THE ANSWER TO THE QUESTIONS?

19. As already mentioned, Ms Mangino is pressing her claim for the DSP on the basis that she has lumber and cervical spinal disorder conditions, which were fully diagnosed, treated and stabilised in the Qualification Period. The Secretary accepts that both conditions are fully diagnosed, treated and stabilised in the Qualification Period. I accept these submissions.

20. Ms Mangino’s lumber and cervical spinal disorder conditions do not attract (either alone or combined) 20 points or more under the Impairment Tables.

21. The Impairment Determination contains the rules for applying the Impairment Tables (Rules). The Impairment Tables are function-based rather than diagnosis-based, and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings in respect of the level of functional impairment arising from permanent medical conditions, and not to assess the medical conditions themselves.[7]

    [7] Exhibit R1, p 6, para 27.

22. “Impairment” is defined to mean a loss of functional capacity affecting a person’s ability to work that result from the person’s permanent medical conditions. Subsection 6(1) of the Rules provides that a person’s impairment is to be assessed on the basis of what the person can, or could, do, and not on the basis of what the person chooses to do or what others do for them.[8]

    [8] Exhibit R1, p 6, para 28.

23. Subsection 6(2) of the Rules provides that the Impairment Tables may only be applied after the person’s medical history has been considered. An impairment rating can only be assigned if the condition causing the impairment is “permanent”. For the purposes of subsections 6(3) and 6(4) of the Rules a condition is “permanent” if it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years.[9]

    [9] Exhibit R1, p 6, para 29.

24. Subsection 6(5) of the Rules states for the purposes of paragraphs 6(4)(a) and (b), that in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following must be considered:

    (a)whether there is corroborating evidence of the condition;

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next two years.[10]

    [10] Exhibit R1, p 6, para 30.

25. Subsection 6(6) of the Rules states for the purposes of paragraph 6(4)(c) and subsection 11(4), that a condition is fully stabilised if:

    (a)either 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 within the next two years; or

    (b)the person has not undertaken reasonable medical treatment for the condition and either:

    (i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to occur, even if the person undertakes the reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable medical treatment.[11]

    [11] Exhibit R1, p 6, para 31.

26. Subsection 6(7) of the Rules defines, for the purposes of subsection 6(6), “reasonable treatment” 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]

    [12] Exhibit R1, p 7, para 32.

27. Subsection 8(1) of the Rules provides that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.[13]

    [13] Exhibit R1, p 7, para 33.

28. Subsection 6(9) of the Rules states there is no Table dealing specifically with pain and (b) when chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and (c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).[14]

    [14] Exhibit R1, p 7, para 34.

29. Subsection 11(1) of the Rules provides that an impairment rating can only be assigned in accordance with the ratings in each table and 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.[15]

    [15] Exhibit R1, p 7, para 35.

30. Subsection 11(3) of the Rules provides that when determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[16]

    [16] Exhibit R1, p 7, para 36.

31. Subsection 11(4) of the Rules provides that when assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.[17]

    [17] Exhibit R1, p 7, para 37.

    Impairment table ratings

32. Table 4 of the Impairment Tables outlines:[18]

    There is a moderate functional impact on activities involving spinal function.

    (1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

    (a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or

    (b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

    (c) the person is unable to bend forward to pick up a light object placed at knee height; or

    (d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

    [18] Exhibit R1, p 11, para 57.

33. 20 points on Table 4 of the Impairment Tables outlines:[19]

    There is a severe functional impact on activities involving spinal function.

    (1) The person is unable to:

    (a) perform any overhead activities; or

    (b) turn their head, or bend their neck, without moving their trunk; or

    (c) bend forward to pick up a light object from a desk or table; or

    (d) remain seated for at least 10 minutes.

    [19] Exhibit R1, p 11-12, para 58.

34. On the issue of what impairment ratings Ms Mangino’s lumber and cervical spinal disorder conditions attract, the Secretary contends, in summary, that:

    ·10 points ought to be allocated to the lumber spinal disorder condition; and

    ·0 points ought to be allocated to the cervical spinal disorder condition.

35. On the lumber spinal disorder condition, the Secretary contends that the Tribunal should adopt the findings of Dr Armstrong in the HPAU that Ms Mangino warranted 10 points under Impairment Table 4. Dr Lloyd-Morgan observed that Ms Mangino had near constant back pain and could not sit for more than 30 minutes as she had to get up and move around, but she could sit for more than 10 minutes. Dr Lloyd-Morgan also observed that Ms Mangino was not able to pick up something from knee level on a repetitive basis. Dr Armstrong also observed Ms Mangino’s basic engagement with physiotherapy which yielded limited results and that she has not engaged with pain management at all.[20]

    [20] Exhibit R1, p 12, para 59.

36. On the cervical spinal disorder condition, the Secretary contends that Ms Mangino has not provided independent evidence of her functional impairment. She has self-reported that she has some restricted neck movement, but could look up and down. Her pain was intermittent and heat to the area was helpful in resolving that pain. Otherwise, Ms Mangino has not provided independent evidence detailing that her impairment under Table 4 should be rated higher than her lumbar spine condition.[21]

    [21] Exhibit R1, p 12, para 60.

37. At the hearing, Ms Mangino was taken to her self-reported medical history filed in support of her DSP claim. In the same, Ms Mangino describes various activities which she says she is capable of doing when she is not in severe pain:

    I am able to perform household tasks, such as washing dishes, sweeping floors, dusting and making the bed, it does, however, take some time to do so. I do the laundry approximately every two to three weeks as it takes two days to complete and then I am in discomfort for the following couple of days.

    … I am able to prepare meals…

    Some days I can collect firewood… and even do some yard work… [22]

    [22] Exhibit Tr1, p 216.

38. In making findings in this application, I do acknowledge that Ms Mangino is experiencing extremely challenging medical conditions, and has some difficulty in carrying out certain activities. However, in my view, having regard to Ms Mangino’s self-reported medical history and the activities that she says she is able to physically undertake, I am not satisfied that any points can be allocated to either the lumber spinal disorder condition or the cervical spinal disorder condition in accordance with the Impairment Tables.  

    DECISION

39. The decision under review is affirmed.

    I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin

    ……………[SGD]….……………

    Associate

    Dated: 27 August 2024

    Date of hearing:  2 July 2024

    Applicant:  Self-represented

    Solicitor for Respondent:                  Mr Ben Dube (Sparke Helmore)

    ANNEXURE A

40.     EXHIBIT	41.     DESCRIPTION OF EVIDENCE	42.     PARTY	43.     DATE OF DOCUMENT		44.     DATE RECEIVED
45.     R1.	46.     Respondent Statement of Facts, Issues and Contentions	47.     R	48.     27/03/2024
49.     Tr1.	50.     Section 37 T-Documents (T1-T30)	51.     -	52.     -	53.     04/05/2023
54.     Tr2.	55.     Supplementary Section 37 T-Documents (ST1-ST6)			56.     01/02/2024