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

[2021] AATA 1371

Marskell and Secretary, Department of Social Services (Social services second review) [2021] AATA 1371 (18 May 2021)

Division:GENERAL DIVISION

File Number(s):      2020/3529

Re:Tammy Ann Marskell

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Senior Member

Date:18 May 2021

Place:Sydney

The decision under review is affirmed.

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

Dr I Alexander, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether the applicant’s impairment was 20 points or more under the Impairment Tables – whether the applicant had a continuing inability to work

LEGISLATION

Social Security Act 1991 (Cth) ss 23, 94 and 1218AAA

Social Security (Administration) Act (Cth) ss 80, 117

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) s 7

REASONS FOR DECISION

Dr I Alexander, Senior Member

18 May 2021

1. On 27 June 2018 Ms Marskell, who is now 62 years old, underwent a functional capacity evaluation to assess whether she was able to maintain her employment, as a cleaner at Wollongong Hospital.

2. On 20 August 2018, Ms Marskell’s employment was terminated on medical grounds.

3. On 5 October 2018, Ms Marskell lodged a claim for disability support pension (DSP) under the Social Security Act 1991 (Cth) (the Act). On 20 December 2018 the claim was rejected by Centrelink.

4. On 19 August 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) found that, at the time of the claim, Ms Marskell “did not attract an impairment rating of 20 points” and, therefore, did not qualify for DSP.

5. On 11 November 2019, Ms Marskell lodged a further claim for DSP.

6. On 2 December 2019 the claim was rejected by Centrelink. The decision was affirmed by an ARO on 12 February 2020.

7. On 4 May 2020, AAT 1 affirmed the ARO’s decision on the basis that Ms Marskell “had a total impairment rating of 15 points” and therefore did not “meet the legislative requirements for DSP.

8. In these proceedings Ms Marskell, who was self -represented, seeks review of the AAT1 decision.

9. In view of the temporary changes regarding the suspension of face-to-face Tribunal hearings during the COVID-19 pandemic, all parties attended the hearing by telephone conference.

   STATUTORY PROVISIONS AND ISSUES

10. In order to qualify for DSP a person 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) Act 1999 (Cth). That is, Ms Marskell must satisfy the requirements between 11 November 2019 and 10 February 2020 (the qualification period).

11. Subsection 94(1) of the Act relevantly 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)…

    (i)     the person has a continuing inability to work;

    (ii)    …

12. The Respondent concedes, and the Tribunal accepts, that Ms Marskell suffered medical conditions that may cause impairment and, therefore, satisfied s 94(1)(a) of the Act.

13. For present purposes, the relevant medical conditions include “arthritis of the hands, knees feet” and “colitis”.[1]

    [1] Ms Marskell’s claim form

14. 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)).

15. 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

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

16. The Introduction to each relevant Table of the Impairment Determination requires that the “[s]elf-report of symptoms alone is insufficient” and “[t]here must be corroborating evidence of the person’s impairment”.

17. 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 a psychiatrist)”.

18. The Respondent contends that, during the qualification period;

    ·the upper limb condition, ‘arthritis of the hands’, was fully diagnosed and the appropriate rating for functional impairment is 10 points s under Impairment Table 3;

    ·the lower limb condition, ‘arthritis of the knees and feet’, was fully diagnosed and the appropriate rating for functional impairment is no more than 5 points under Impairment Table 3;

    ·the ‘colitis” was fully diagnosed, treated and stabilised but there is no evidence that the condition resulted in any functional impairment.

19. The Respondent also contends that Ms Marskell did not have a “continuing inability to work”.

20. Paragraph 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)…”

21. 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.

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

23. It is agreed that, prior to the date of claim, Ms Marskell had actively participated in a POS for 245 days and, therefore, had not satisfied section 7 of the POS Determination.

24. It follows that the determinative issue in this matter is whether, during the qualification period, Ms Marskell suffered an impairment of 20 points or more under a single Impairment Table. 

    Upper Limb Function- bilateral hand osteoarthritis

25. In a Functional Capacity Evaluation Report Ms Harper, occupational therapist, stated inter alia as follows:

    Ms Marskell advised that during her hospital admission in April 2018, she contracted Golden Staph…this was managed with medication and has now resolved. Ms Marskell reported that has arthritis in bilateral hands and knees….

    Ms Marskell reported being unrestricted in the following tasks – sitting, standing, walking, manual handling, bilateral grip strength and bilateral upper limb use.

    Physical examination: wrist flexion, extension, supination, pronation within normal range (left and right); decreased range of motion fingers (to 50% left – to 70% right), reduced grip strength (55% left and 33% right)

    Conclusions

    Ms Marskell has demonstrated physical capacity to perform ‘medium’[2] work duties up to a maximum of 11.5 kg ……. Ms Marskell’s grip strength is below average (assessed at 14.3 kg and 7.2kg) for right and left hand respectively for her age and gender………Ms Marskell can safely lift 11.5 kg from floor to waist and up to shoulder height. She can carry 10 kg bilaterally and with her right upper limb. She can carry 5 kg with the left upper limb. Ms Marskell can push and pull up to 85 kg plus the weight of a heavy- duty trolley over carpeted surface safely and independently.

    In a report dated 2 July 2018, Dr Sinclair, Senior Medical Office CS Health noted that April 2018 Ms Marskell became acutely unwell because of a Staphylococcus infection in her left ring finger which required treatment with antibiotics and surgical debridement and which resulted in the reduction of movement in that finger.

    [2] Medium work duties are defined as ‘lifting 9kg to 23 kg maximum with frequent lifting and/or carrying of objects weighing up to 9kg.

26. Dr Sinclair also noted that Ms Marskell said that she was ‘able to close her right hand but not the left’ and then he stated, inter alia, as follows:

    With regard to activities of daily living, she stated that……she had no difficulty getting dressed in the morning, preparing light meals or doing housework at home. That include vacuuming, making the beds or washing  the shower. However she was unable to carry out any tasks using the left hand …..she said she could do the washing and hanging out the clothes to dry. She had no difficulties with driving as her vehicle was small and she is able to grasp the wheel between the thumb and index fingers on the left[3].

    Examination of the upper limbs showed that there were marked deformities in the digits of both hands and particularly the left ring finger which was markedly swollen and discoloured. On each hand the second, third and fourth digits had a pronounced valgus deformity both at the PIP and at the DIP joints …there was markedly restricted movement in the left hand …..In the right hand there was better flexion of the digits and she was able to touch the palm ……Inspection of the wrists showed that theses did not appear swollen or deformed ….range of movement…was reasonable …elbows showed a normal appearance …range of motion was normal.

    Summary

    Ms Marskell is a 59 year old hospital worker who had surgery for a hammer toe during 2017.Her return to work has been complicated by an infected [left] ring finger and an active symmetrical arthritis involving the hands and knees which have limited her abilities. She is awaiting further surgery on the toe. ……

    Ms Marskell would be able to work full hours if she is performing duties which do not involve significant amounts of manual work.

    [3] At the hearing Ms Marskell confirmed that, during the qualification she was still able to drive her car which had a manual gearbox.

27. In a letter dated 10 January 2019, Associate Professor Riordan, consultant rheumatologist, noted that, since he had last seen Ms Marskell, she had been diagnosed with “ulcerative colitis” in October 2018[4] which had been treated with oral corticosteroids[5] and Mesalazine.

    [4]  Summons documents -Dr Selvarajahs Practice records - 25 October 2018

    [5] Prednisolone - 25 mg per day.

28. Professor Riordan noted that since the cessation of Celecoxib[6] Ms Marskell’s “hand arthritis has progressed significantly”. He also stated that she “has an unusual aggressive form of osteoarthritis with poor fist formation due to involvement due to involvement of the PIP and DIP joints and MCP joints” and that Celecoxib was the only medication “that provided any significant symptom relief”.

    [6] Non- steroidal anti-inflammatory medication (NSAID)

29. It appears that the Celecoxib was ceased because of an initial question as to whether NSAIDs “exacerbate ulcerative colitis”.

30. In a letter, dated 2 April 2019 Dr Selvarajah, general practitioner, stated that Ms Marskell has been diagnosed with severe “rheumatoid arthritis”[7] of both hands and knees and that “she is unable to perform any activities requiring the use of both hands” but provided no other details.

    [7] Professor Riordan: ‘severe osteoarthritis’

31. In a letter, dated 17 June 2019, Professor Riordan noted that Ms Marskell was “having difficulties with hand function and finds stairs and mobilising also difficult”. He also commented that “her hand function was a little better on Prednisolone which she was taking for ulcerative colitis”.

32. In a brief letter, dated 17 June 2019, Dr Riordan stated that Ms Marskell has “severe arthritic change involving the small joints of her hands and knees” and “this makes it difficult for her to do normal day to day activities such as taps, jars, pegging clothes on the line, undoing lids”.

33. On 1 September 2020, about seven months after the end the qualification period, Dr Selvarajah submitted a copy of the descriptors of Impairment Table 2 – Upper Limb Function in which she had placed a tick next to 4 out 5 of the suggested descriptors in respect of ‘severe’ functional impact on activities using hand or arms.

34. It appears that Dr Selvarajah may have been led to believe that this approach would satisfy the requirements for corroborative evidence of Ms Marskell’s self-reported symptoms and functional impairment.[8]

    [8] Summons documents-Dr Selvarajahs Practice records: 1 September 2020 – pt came in with disability application form 20 pages explained that that they will want evidence as mentioned in the form – not convinced – just wants it ticked  

    Consideration

35. There is no dispute that, during the qualification period, Ms Marskell suffered severe “osteoarthritis” of both hands, involving mainly her the fingers, and that the condition was permanent for the purposes of the Impairment Determination.

36. There is also no dispute that the “osteoarthritis” has had a significant functional impact on Ms Marskell’s activities using her hands.

37. Ms Marskell contends that there is a severe functional impact, whereas, the Respondent contends there is no more than a moderate functional impact.

38. The difficulty for Ms Marskell is that the only satisfactory assessment of the functional impact of her hand “osteoarthritis” that has been provided to the Tribunal was performed in June/July 2018, when Ms Marskell underwent the functional capacity evaluation in assessing her ability to continue work as a cleaner in Wollongong Hospital. In my view this assessment suggested a mild to moderate functional impact.

39. I recognise that in October 2018, when Ms Marskell was diagnosed as suffering from “ulcerative colitis”, her arthritis medication was ceased and in the subsequent months her “hand arthritis has progressed significantly”[9].

    [9] Supra: para 29

40. Apart from Dr Selvarajah’s ticked copy of the Impairment Table 2, which is of little value, there has been no other satisfactory medical assessment of Ms Marskell’s hand function during the qualification period.

41. However, on consideration of the available evidence I am satisfied that, during the qualification period, there was at least a moderate functional impact on Ms Marskell’s activities using hands and that a rating of 10 points under Impairment Table 2 can be assigned .

42. On the available evidence, however, I am not persuaded that, during the qualification period, there was a severe functional impact on Ms Marskell’s activities using hands.

    Lower Limb Function – hammer toe and knee osteoarthritis

43. In his report of 2 July 2018, Dr Sinclair noted that in 2017 Ms Marskell had “surgery for a hammer toe condition” and that although the toe was no longer painful she “still intended to have a surgical release to the tendon ….but not to do this for another two years”.

44. Dr Sinclair also noted that Ms Marskell had “active symmetrical arthritis” involving her knees which limited her ability to kneel and squat.

45. On 11 June 2019 Ms Marskell was placed on the Shellharbour Hospital waiting list for “reconstruction right forefoot” with a waiting time of approximately 12 months.[10]

    [10] On 22 January 2020, on advice from Ms Marskell, she was removed from Shellharbour Hospital waiting list.

46. In his letter of 17 June 2019, Professor Riordan stated that Ms Marskell had “severe arthritic change” in her knees which makes it “difficult for her to walk any distance and to go up and down stairs”.

47. In letter dated 7 August 2019, Professor Riordan stated that “knee x-rays confirmed severe osteoarthritic change in the patellofemoral joints” of both knees.

48. On 3 September 2019, Professor Riordan reviewed Ms Marskell and stated she was “heading to Vietnam[11] and as she responded well to the local into the right knee she would like this on the left knee so that she can enjoy [her] holiday” which he “instilled without difficulty”.

    [11] Centrelink electronic screen- Travel outside Australia record: 11 September 2019 to 23 September 2019.

49. On 26 February 2020, Ms Marskell was placed on the Wollongong r Hospital waiting list for “Right metatarsophalangeal joint fusion + correction of hammer toe’’ with a waiting time of approximately 12 months.

50. In a letter dated 26 November 2019, Professor Riordan stated that Ms Marskell “has severe patellofemoral osteoarthritic change and will require a knee replacement”.

51. In a letter dated 18 December 2019 Dr Bhimani, orthopaedic surgeon, noted that that Ms Marskell “feels that her knee symptoms are progressively worsening and interfering with her quality of life” and stated she will be placed on the waiting list at Wollongong Hospital for “bilateral total knee replacement”.

52. At the hearing, Ms Marskell told the Tribunal that she underwent bilateral knee replacement on 23 March 2021 and is currently making a slow recovery.

    Consideration

53. There is no dispute that, during the qualification period, Ms Marskell suffered severe ‘bilateral knee osteoarthritis’ and ‘right hammer toe ‘.

54. The evidence as set out above clearly demonstrates that, during the qualification period, Ms Marskell lower limb conditions were not fully treated and fully stabilised and, therefore, a rating under Impairment Table 3 cannot be assigned.

    Ulcerative Colitis

55. In a letter dated 16 December 2019 Dr Rattan – gastroenterologist, Wollongong Hospital stated, inter alia, as follows:

    I reviewed Ms Tammy Marskell regarding her ulcerative colitis …She had symptoms of diarrhoea 2 days, roughly 3 weeks ago. There was one episode of rectal bleeding…. associated with abdominal pain. She started prednisolone 5mg daily for 5 days and her symptoms have improved…..Given her symptoms have resolved in the two days, it is less likely that this is related to a flare of UC.

56. In a letter dated 18 January 2019, Dr Humphris, Staff Specialist Gastroenterology, Wollongong Hospitals stated. Inter alia, as follows:

    Ms Marskell was reviewed regarding her ulcerative colitis…. completed the prednisolone course yesterday. At present her bowels are open 1-2 times daily which is formed and without blood. She has occasional diarrhoea and occasional lower abdominal discomfort.

57. In a letter dated 6 February 2019, Dr Humphris, stated, inter alia, as follows:

    Ms Marskell was reviewed regarding her [ulcerative colitis] …at present her bowel habit fluctuates and in the last week has been constipated, opening every 1 -2 days. There is occasional diarrhoea but overt blood … Ms Marskell has not taken prednisolone for over one month. At present Ms Marskell is in clinical remission from UC.

58. In a letter dated 18 February 2020, Dr Humphris, stated, inter alia, as follows 

    Ms Marskell had self- limiting diarrhoea in late November last year. Stool testing did not identify any pathogenic organisms. Her symptoms have resolved …I plan to review her in 6 months.

59. In a letter dated 28 June 2019, Dr Humphris stated, inter alia as follows:

    Ms Marskell was reviewed regarding her ulcerative colitis…. diagnosed October 2018. Recent gastroscopy and colonoscopy were normal…. biopsies were normal. Ms Marskell is in clinical and endoscopic/histologic remission on maintenance …Masalazine 2g daily. I will review her in 6 months….

    Consideration

60. There is no dispute that, during the qualification period, Ms Marskell suffered ‘ulcerative colitis’ and the evidence as set out above clearly demonstrates that during the qualification period, the condition was fully treated and fully stabilised and, therefore, permanent for the purposes of the Impairment Determination.

1. The evidence also demonstrates Ms Marskell suffered no functional impact with respect to the descriptors in either Impairment Table 10 – Digestive and Reproductive Function or Impairment Table 13 – Continence Function, therefore, a rating 0 points can be assigned.

   CONCLUSION

2. For reasons set out above I am satisfied that, that during the qualification period, Ms Marskell had a total rating of no more than 10 points under the Impairment Tables, which means she did not satisfy section 94(1)(b) of the Act and, therefore, did not qualify for DSP. 

   DECISION

3. The Tribunal finds that, that during the qualification period, Ms Marskell did not satisfy section 94(1)(b) of the Act and, therefore, did not qualify for DSP.

4. The decision under review is affirmed.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

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

Associate

Dated: 18 May 2021

Date(s) of hearing:	29 April 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Dr S Thompson (Services Australia)