Marina Fidanza and Secretary, Department of Social Services
[2015] AATA 150
•16 March 2015
[2015] AATA 150
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/3572
Re
Marina Fidanza
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 16 March 2015 Place Brisbane The Tribunal affirms the decision under review.
................................SGD........................................Dr M Denovan, Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – DSP – 20 points or more under the Impairment Tables – Fibromyalgia - Decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth), ss 23, 26, 94
Social Security (Administration) Act 1999 (Cth), s 13, Schedule 2
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 6
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Dr M Denovan, Member
16 March 2015
Ms Marina Fidanza is the applicant in these proceedings. She lodged a claim for Disability Support Pension (“DSP”) on 8 July 2013. On 7 November 2013 the Respondent decided to reject this claim. An Authorised Review Officer (“ARO”) affirmed that decision on 8 April 2014 as did the Social Security Appeals Tribunal (“SSAT”) on 20 June 2014. The applicant applied to the Administrative Appeals Tribunal (“AAT”) on 11 July 2014.
I must decide whether Ms Fidanza met the eligibility criteria for DSP on 8 July 2013, or within 13 weeks of that date (“the relevant period”). If so, Ms Fidanza will be entitled to DSP from the date she contacted the respondent and indicated her intention to claim, which was on 5 July 2013.
Both parties have expressed their consent to have the matter heard on the papers.
ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION
The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for DSP. To the extent that it is relevant for present purposes, s 94 of the Act provides that the applicant must:
·have a physical, intellectual or psychiatric impairment; and
·have an impairment of 20 points or more under the Impairment Tables;[1] and
·have a continuing inability to work.
[1] See s 23 of the Act, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.
Under Sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within the relevant period. In this case the relevant period is from 8 July 2013 and 7 October 2013.
There are rules for applying the impairment tables (“Impairment Tables”), in deciding if a person qualifies for DSP. The Impairment Tables are function-based, rather than diagnosis based. Ratings are assigned to reflect the level of functional impairment from conditions that have been accepted to be permanent, and fully diagnosed, fully treated and fully stabilised.
A person’s functional capacity rated under the Impairment Tables concerns their capacity to work. The presence of a diagnosed condition does not necessarily mean that there will be a functional impact to which an impairment rating can be assigned from the Impairment Tables.
A person is regarded as having a continuing inability to work under s 94 of the Act if the Secretary is satisfied that:
·they have an inability to work for 15 hours or more a week due to their accepted impairments; and
·they have actively participated in a program of support.
This second requirement is not necessary if a person has a severe impairment of 20 impairment points or more under a single Impairment Table.
Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”),[2] it is necessary to determine whether Ms Fidanza’s conditions can be regarded as being permanent and whether the impairment resulting from those conditions is likely to persist for more than two years.[3] A condition will be considered permanent where it has been fully diagnosed, treated and stabilised.[4]
[2] The Determination was made by the Minister pursuant to s 26(1) of the Act.
[3] Subsection 6(3) of the Determination.
[4] Subsection 6(4) of the Determination.
The Secretary accepts Ms Fidanza suffers from the following conditions, and therefore satisfies s 94(1)(a) of the Act:
·Ankle condition;
·Spinal condition;
·Fibromyalgia;
·Gynaecological condition;
·Mental health condition;
·Respiratory condition; and
·Shoulder condition.
The Secretary accepts that the ankle, lumbar spine and gynaecological conditions are fully diagnosed, treated and stabilised. The Secretary contends that both the gynaecological and respiratory conditions cause limited or minimal impact and should not be assigned a rating. The Secretary further contends that the shoulder and mental health conditions are not fully diagnosed, treated and stabilised, and cannot be assigned a rating under the Impairment Tables.
The issues that I must determine are:
·Which, if any, of Ms Fidanza’s conditions meet all the legislative criteria within the relevant period to be allocated an impairment rating; and
·If any can be rated, whether she has 20 impairment points or more; and if so whether she has a continuing inability to work.
CONSIDERATION
Does Ms Fidanza have any conditions that meet all the legislative requirements within the relevant period to be allocated a rating from the Impairment Tables?
Ms Fidanza gave evidence by telephone at the SSAT hearing, and reference to her evidence is made in the SSAT decision, which is included in the Section 37 documents.
Osteoarthritis of the lumbar spine (lumbar spine condition)
The SSAT records Ms Fidanza as having pain throughout her spine and whole body. She told the SSAT she can sit and drive for up to 35 minutes. She said it takes her one hour to get going in the morning because of the stiffness in all of her joints. General practitioner Dr Frances Robinson has provided a number of medical reports. In the report dated 18 March 2012 he stated that Ms Fidanza has chronic pain in her joints, hands, back and knees. He noted she was not taking any medications and she will require pain management. General practitioner Dr Arti Vaid provided a medical report dated 8 July 2013, and general practitioner Dr Mark Bennett provided a medical report dated 21 November 2013. Neither of these doctors made any mention of lumbar spondylosis or other spinal conditions in their reports.
Ms Fidanza was noted to have a disc bulge and mild degeneration of the facet joints, on a CT scan performed in January 2012. Ms Fidanza told the SSAT she has being prescribed Mobic and Panadeine Forte, however there is no medical evidence which explains when, for how long, and for what reason she was prescribed these medications. There is no medical evidence that Ms Fidanza has received the pain management for this condition recommended by Dr Robinson in 2012. Ms Fidanza has been diagnosed with a large number of medical conditions; many of those conditions can have associated back pain. Because of this, and also because the most recent doctor’s report that mentions the lumbar spine condition was in 2012, I am not reasonably satisfied that Ms Fidanza had any symptoms from the pathology identified in the 2012 CT scan, or any other lumbar spine condition, during the assessment period. The condition therefore cannot be regarded as fully diagnosed, treated and stabilised during the assessment period, and cannot be allocated a rating.
Chronic depressive disorder (mental health condition)
Before me is a brief report from psychiatrist Dr Ashim Majumdar, dated 1 December 2014. Dr Majumdar indicated Ms Fidanza suffers from chronic depressive disorder, underlying which are chronic pain and a number of physical problems including fibromyalgia.
Ms Fidanza did receive some counselling for her mental health problems prior to consulting Dr Majumdar, however she did not see a clinical psychiatrist or psychiatrist, prior to or during the relevant period. Her condition can therefore not be regarded as fully diagnosed, treated and stabilised during the relevant period, and cannot be allocated a rating.
Right ankle fracture
According to the medical reports before me, Ms Fidanza fractured her ankle on 1 November 2012 when she fell off a skateboard. She had a surgical reduction and internal fixation. She subsequently developed a DVT (deep venous thrombosis) in her calf. Ms Fidanza told the SSAT that she suffers from unbelievable unremitting ankle pain and she cannot walk on uneven ground. She said she can walk up stairs slowly with the assistance of a hand rail, and spends most of her day on the couch with her foot elevated. That Ms Fidanza has ongoing pain in her ankle was confirmed by Dr Vaid in his medical report. Physiotherapist Ms Layton provided a report dated 11 July 2013. In that report Ms Layton documents Ms Fidanza’s attendance at four post-operative physiotherapy treatments. Ms Layton noted only limited progress and opined that a number of factors including depression and grief and loss issues are impacting on her pain perception.
A degree of degenerative changes were also seen in the ankle joint. Orthopaedic surgeon Dr Kinyanjui reviewed an MRI performed in 7 August 2013. He said the MRI demonstrated degenerative changes with some tenosynovitis. He noted Ms Fidanza said she could not comply with orthotics, and suggested she stop smoking and lose weight. There is also a report from orthopaedic registrar Dr Roe, dated 15 December 2013, who noted the main issues in Ms Fidanza’s ankle were swelling, constant pain and decreased exercise tolerance. He recommended Ms Fidanza trial an ankle brace.
There is no evidence that Ms Fidanza has tried any of the treatment options suggested by Dr Roe and Dr Kinyanjui. Even if she has, because Ms Fidanza did not consult Dr Roe or Dr Kinyanjui until a few weeks prior to the end of the relevant period, there was insufficient time for Ms Fidanza to fully trial the treatment options suggested by both of those specialists. The ankle condition can therefore not be regarded as fully diagnosed, treated and stabilised during the relevant period and no impairment points can be allocated for this condition.
Fibromyalgia
In his report dated 8 July 2013 Dr Vaid provided a presumptive diagnosis of fibromyalgia. Dr Vaid indicated Ms Fidanza had been referred to Dr Rahman. There is a report from Dr Rahman dated 9 May 2013. No mention of fibromyalgia is made in that report. There is no medical evidence confirming this diagnosis. The condition has not been fully diagnosed, and indeed the diagnosis is either still presumptive, or has possibly been ruled out by Dr Rahman, it is not possible to determine which on the limited medical information before me. The condition can therefore not be regarded as having been fully diagnosed, treated and stabilised. No rating from the Impairment Tables can be given.
Respiratory Condition
Ms Fidanza has been diagnosed with emphysema. She smokes 40 cigarettes a day, and has been advised to cease smoking. She claims that her anxiety prevents her from following this advice. Until Ms Fidanza has her anxiety treated to the extent that she can address her tobacco addiction with the treatment recommended, her emphysema cannot be regarded as fully treated. It cannot be allocated a rating.
Gynaecological condition
Ms Fidanza has been diagnosed with disordered uterine bleeding. Both Drs Vaid and Bennett list this condition as one that is generally well managed, and that causes minimal or limited impact on ability to function. This condition can therefore not be assessed under the Impairment Tables, and if it was, it would attract a rating of no more than zero.
Shoulder condition
No mention of a shoulder condition was made at the time of claim, or within the thirteen weeks thereafter. The first mention of a shoulder condition was made long after the relevant period, in April 2014. I am unable to determine if Ms Fidanza had any shoulder condition within the relevant period. If Ms Fidanza suffers from a shoulder condition, it certainly was not fully diagnosed within the relevant period.
CONCLUSION
Ms Fidanza does not satisfy the criteria set out in s 94 of the Act. Specifically, Ms Fidanza does not have any conditions that can be regarded as fully diagnosed, treated and stabilised in the relevant period. She therefore has no points from the Impairment Tables and does not satisfy s 94(1)(b). She also had not completed a program of support prior to lodging this application for DSP. The requirement is that she complete 18 months of a program of support. Ms Fidanza does not satisfy any of the grounds that would exempt her from this requirement. Ms Fidanza did not have an incapacity to work, and does not satisfy s 94(1)(c). Ms Fidanza is therefore not eligible to receive DSP.
DECISION
The decision under review is affirmed.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member .................................SGD....................................
Associate
Dated 16 March 2015
Date of hearing Hearing on the papers 16 March 2015
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