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

[2016] AATA 176

Martin and Secretary, Department of Social Services (Social services second review) [2016] AATA 176 (24 March 2016)

Division	GENERAL DIVISION
File Number(s)	2015/4749
Re	Katie Martin
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard McCabe
Date	24 March 2016
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard McCabe

Catchwords

SOCIAL SECURITY – disability support pension – medical criteria – allocation of impairment points – applicant does not reach 20 impairment points – no continuing inability to work – decision under review affirmed

Legislation

Social Security Act 1991 (Cth) s 94

Secondary Materials

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

REASONS FOR DECISION

Senior Member Bernard McCabe

24 March 2016

1. Ms Katie Martin was granted the disability support pension (the DSP) in 2011 but it was cancelled from 1 May 2015 because the Secretary of the Department of Social Services said Ms Martin was no longer qualified. Ms Martin has asked the Tribunal to reconsider that issue.

2. The applicant cannot succeed – most obviously because she does not have a continuing inability to work. I explain my reasons below.

   Was the applicant qualified for the DSP on the cancellation date?

3. A person does not qualify for the DSP unless he or she is able to satisfy the so-called ‘medical criteria’ in s 94(1) of the Social Security Act 1991 (Cth). In Ms Martin’s case, I must be satisfied she was qualified – that is, she was able to satisfy the medical criteria – at the date of cancellation.

4. The Secretary accepts Ms Martin suffered from a traumatic brain injury and fatigue at the time of cancellation. There is also evidence she suffers from endometriosis, experiences bowel problems and suffers from depression. It follows she is able to satisfy the first requirement in s 94(1)(a), namely that she experiences a physical, intellectual or psychiatric impairment.

5. Section 94(1)(b) requires that the applicant be allocated at least 20 points under the impairment tables. The impairment tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. The impact of one’s conditions on the functioning of their body is assessed against different tables. The introduction to the Determination makes clear that points cannot be allocated unless the condition in question is fully diagnosed, fully treated and fully stabilised.

6. The applicant’s depression condition is not – or was not at the relevant time - fully diagnosed. Ms Martin says her general practitioners have treated her for depression and anxiety in the past. She also saw a psychologist at some point. But there is no evidence of a diagnosis being made prior to the cancellation date by an appropriately qualified medical practitioner. An appropriately qualified medical practitioner is a psychiatrist or a medical practitioner in consultation with a clinical psychologist. I note the file includes a letter of referral from her general practitioner dated 16 November 2015. The letter is addressed to “The Psychologist”. I also note Ms Martin has subsequently seen a psychologist who provided a letter of advice dated 8 February 2016. The psychologist recommends further treatment. That letter tends to suggest the applicant’s condition was not, at the relevant time, fully treated and fully stabilised.

7. It follows I cannot assign an impairment rating in respect of the depression condition. I am also unable to assign an impairment rating in respect of the applicant’s endometriosis and bowel conditions. The applicant had surgery to deal with the endometriosis after the cancellation date and she was still in the process of recovery when she came before the Tribunal’s first tier review. She is now managing the condition but it clearly was not, at the date of cancellation, fully treated and fully stabilised. The bowel condition is connected with the applicant’s motor vehicle accident. She explained she experienced a perforated bowel. She says she has been told she developed scar tissue which is causing problems. She is yet to see a surgeon in Lismore for further treatment and management. In those circumstances, she could not be said to be fully treated and fully stabilised. In those circumstances, I cannot assign a rating in respect of either condition.

8. I turn then to the brain injury which impacts on the applicant’s functioning. The Secretary accepts the condition is fully diagnosed, fully treated and fully stabilised. It is therefore appropriate to assign an impairment rating.

9. The starting point for consideration of the brain injury is table 7, which deals with brain function. When undertaking an assessment, one must have regard to the descriptors in the table. The decision-maker must also look for corroborating evidence as self-reporting of symptoms is insufficient. The corroborating evidence would ordinarily be supplied by a person with relevant qualifications, although other evidence may still be relevant.

10. Ms Martin’s self-report of symptoms suggests she experiences a moderate functional impact, which would result in the allocation of 10 impairment points. She explained she:

    (i)Had a poor memory and relied on lists and a diary;

    (ii)Was unable to concentrate for more than about 15 minutes on a task;

    (iii)Froze and became flustered when faced with problems, and usually turned to her mother or brother for assistance and advice;

    (iv)Was unable to plan or organise projects like a  birthday party;

    (v)Had a quick temper and became unreasonable.

11. Ms Martin’s brother gave evidence by telephone. He was unable to confirm all of the applicant’s evidence although she pointed out her brother was not necessarily aware of the extent to which she used diaries and lists. Mr Martin, the applicant’s brother, gave evidence suggesting the applicant experienced a mild impairment.

12. The best independent evidence available appears to come from the job capacity assessor who pointed out the applicant experiences a mild impairment of brain function which would result in an allocation of 5 points. That evidence is consistent with the evidence provided by Mr Martin at the hearing. I note the applicant’s treating general practitioner provided a letter dated 13 November 2015 – a significant time after the cancellation date – which asserts the applicant ‘deserves’ an allocation of 10 points, but his reasons are also consistent with there being a mild functional impact. In the circumstances, I have no clear basis for allocating more than 5 points.

13. Ms Martin also experiences fatigue and sleep disorders that are ultimately connected to her brain injury. The impact of those disorders on the functioning of different parts of the body must be assessed against each of the relevant tables.

14. Table 1 deals with the impact of the conditions on physical exertion and stamina. Ms Martin says she wakes up tired each morning. The job capacity assessor says the condition has limited functional impact on the applicant. That conclusion is consistent with the evidence that Ms Martin is able to work 15 hours each week undertaking cleaning activities like vacuuming floors and wielding a mop. It is physical work, and she can do a variety of these tasks for at least 30 minutes at a time. She said she had some difficulty negotiating stairs but she does not clearly meet the descriptors indicating a mild functional impact. I accept that 0 points should be allocated under this table.

15. Table 3 deals with lower limb function. The applicant says she experiences a loss of strength in her lower limbs as a consequence of her fatigue. She says she has difficulty climbing stairs or raising herself from her knees to a standing position. While the difficulty with stairs raises a question over whether she can satisfy the descriptors suggesting a mild functional impact, there is no evidence to suggest she is unable to stand for more than 10 minutes or that she needs a lower limb prosthesis or a walking stick. It follows she cannot be awarded any points under table 3.

16. Table 4 deals with spinal function. The applicant did not provide clear evidence of problems with her spine around the time of her application but the letter from Dr Chiu dated 13 November 2015 confirms the applicant suffers from central core disease which compromises her mobility and affects her ability to climb stairs, squat or kneel. Leaving to one side the fact the evidence was provided months after the claim without clearly confirming it refers to the position in May 2015 when the cancellation decision was made, the evidence does not clearly establish the applicant is entitled to any impairment points. Ms Martin is clearly able to undertake a range of activities identified in the descriptors connected with a 5 or 10 point impairment. It is impossible to allocate any points under this table.

17. In summary, it is difficult to see how the applicant can possibly be assigned more than 5 points under the various impairment tables in respect of her various conditions. If that is so, she is unable to satisfy the criterion in s 94(1)(b).

18. That would ordinarily be the end of the matter, but I will add this: if I gave Ms Martin the benefit of the doubt and allocated 20 points under the various tables, I am not satisfied she experiences a continuing inability to work within the meaning of s 94(2). I say that because the applicant is currently (and was at the relevant time) undertaking 15 hours of work each week. Her ability to do that much work is supported by the opinions of Dr Lembke (exhibit one at p 114), one of her general practitioners, and the job capacity assessor (exhibit one at p 99). In those circumstances, she would be unable to meet the requirement in s 94(1)(c) even if she had enough impairment points.

    Conclusion

19. The applicant is unable to satisfy the medical criteria in s 94 of the Social Security Act 1991 (Cth). She was no longer qualified to receive the DSP as at the date of cancellation. The decision must therefore be affirmed.

20.     I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 24 March 2016

Date of hearing	22 March 2016
Applicant	By telephone
Advocate for the Respondent	Mr J Guthrie, Department of Human Services