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

[2015] AATA 604

McDonald and Secretary, Department of Social Services (Social services second review) [2015] AATA 604 (18 August 2015)

Division	GENERAL DIVISION
File Number(s)	2014/4099
Re	Teresa McDonald
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	18 August 2015
Place	Sydney

The decision under review is affirmed.

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

Dr I Alexander, Member

CATCHWORDS

Social Security – disability support pension – whether the Applicant is eligible to receive DSP – whether the Applicant has 20 points under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991, s94

Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr I Alexander, Member

18 August 2015

1. On 22 August 2013 Ms McDonald lodged a claim for Disability Support Pension (“DSP”) on the basis that she suffered medical conditions which were having an impact on her ability to function.

2. Ms McDonald’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (“SSAT”) on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular she did not satisfy s 94(1)(b) of the Act, in that her impairment rating was not 20 points or more under the Impairment Tables.

3. In these proceedings Ms McDonald seeks review of the decision of the SSAT dated 14 July 2014.

4. At the hearing Ms McDonald was self-represented and able to give oral evidence.

5. I note that in a Job Capacity Assessment (JCA) performed on the 18 February 2015 Ms McDonald was assigned 40 points under the Impairment Tables (10 points under Table 3, 10 points under Table 4 and 20 points under Table 5). Based on these findings Ms McDonald was subsequently granted DSP with payment backdated to 18 February 2015.

   ISSUES

6. In order to qualify for DSP, Ms McDonald 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 the requirements of the Social Security (Administration) Act 1999, that is, between 22 August 2013 and 21 November 2013 (the claim period).

7. Section 94(1) of the Act provides that a person is qualified for disability support pension 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) one of the following applies;

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

8. The respondent concedes and the Tribunal accepts that Ms McDonald suffers medical conditions that cause impairment and therefore satisfied s 94(1)(a) of the Act at the time of her 2013 claim for DSP.

9. 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)).

10. For the purposes of paragraph 6(3)(a) a condition is permanent if the condition 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)).

11. The introduction to each Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

12. In a Centrelink Medical Report dated 22 August 2013 Dr Jirgis, GP, lists “lumbar disc prolapse and canal stenosis” and “depression” as conditions with most functional impact.

13. Dr Jirgis lists “asthma” as a medical condition that is generally well managed and causes minimal or limited impact. At the hearing Ms McDonald agreed that during the claim period she did not suffer any functional impact because of her asthma and therefore zero points would be the appropriate rating under the Impairment Tables.

14. The respondent submits that during the claim period the “lumbar spine condition” was permanent for the purposes of the Impairment Determination and that Ms McDonald suffered moderate impact on activities involving spinal function with a rating of 10 points under Impairment Table 4.

15. In respect of the condition of “depression” the respondent submits that during the claim period her mental health condition was not fully treated and fully stabilised. Accordingly a rating under Impairment Table 5 cannot be applied. Therefore Ms McDonald did not have a rating of 20 points or more and did not satisfy section 94(1)(b) of the Act at the time of her 2013 claim for DSP.

16. Ms McDonald submits that during the claim period her impairment rating under Table 4 was 20 points or more but makes no specific submissions in respect of the condition of “depression”.

17. The respondent also submits that if the Tribunal were to find that during the claim period Ms McDonald did have a rating of 20 points or more under the Impairment Tables, that she did not satisfy section 94(1)(c) because she did not have a continuing inability to work.

18. It follows that the issue for the Tribunal to consider is whether during the claim period Ms McDonald had a rating of 20 points or more under the Impairment Tables, and if so, whether she had a continuing inability to work.

    Lumbar spine condition

19. Ms McDonald told the Tribunal she had suffered low back pain since she injured her back in 2006. In September 2012 following several days of acute severe pain she was admitted to Westmead Hospital for an operation on her back. The operation did relieve some of her pain but over the next 12 months there was a gradual deterioration with increasing pain and she had to take time off work more frequently.

20. Despite her difficulties with her lower back pain Ms McDonald had been fully employed as an employment consultant for several years. She resigned from her last position effective from 4 September 2013, but had not been at work since 16 August 2013.

21. Ms McDonald told the SSAT that she was suffering from depression and that this was causing difficulties with her work and her relationship with her partner. She told her boss she could not return to work and moved to Coffs Harbour to stay with her son and his girlfriend.

22. It is not entirely clear when Ms McDonald actually left Sydney and during the hearing before me she had significant difficulty with her recollection of relevant dates and events.

23. Documents before the Tribunal indicate Ms McDonald was in Coffs Harbour from at least the beginning of September 2013 until early April 2014. Between 19 February 2014 and 2 April 2014 she was employed under contract as an employment consultant.

24. Ms McDonald told the Tribunal that while in Coffs Harbour she suffered a significant deterioration in her symptoms and was unable to get out of her car. This led to her son taking her back to Sydney where she was admitted to Westmead Hospital on the 1 April 2014.

25. Ms McDonald told the Tribunal that she was in Westmead Hospital for about 4 weeks and was treated with two nerve root blocks and changes in her prior medication, including a significant increase in the dose of Lyrica from 75mg twice a day to 300mg twice a day.  She returned to Coffs Harbour where she was to undergo further rehabilitation at the local private hospital. For reasons that are unclear this did not happen.

26. Ms McDonald’s condition continued to deteriorate so that she returned to Sydney and was again admitted to Westmead Hospital on the 18 June 2014.

    Documentary Evidence

27. In the medical report dated 22 August 2013 Dr Jirgis notes the current symptoms of her lumbar spine condition as “multiple exacerbations of pain and limitation of movement” and impact on ability to function as “unable to walk and stand, continuous pain affecting daily activities and sleep”

28. In a letter dated 22 October 2013 Dr Gilliland, GP, refers Ms McDonald to a surgeon for treatment of rectal bleeding with a prolapsed haemorrhoid. In this letter there is only passing reference to Ms McDonald’s lumbar spine condition.

29. In a supplementary report dated the 22 November 2013 Dr Jirgis notes current symptoms as “severe lower back pain radiated to both legs. limitation of movements” but provides no information on how this impacts Ms McDonald’s ability to function.

30. In the report of a Job Capacity Assessment performed in Coffs Harbour on 2 September 2013 the assessor, a registered occupational therapist, concluded that Ms McDonald’s spine condition was fully diagnosed, treated and stabilised, and had a moderate functional impact on activities involving spinal final function. The assessor applied 10 points under Impairment Table 4. In respect  of functional impact the assessor stated the following:

    “Ms McDonald reported she is able to drive a vehicle for 30-45 minutes and reported that she recently drove her car from Sydney to Coffs Harbour. She stated that she can sit for 30 minutes at a time before she needs to change posture. The GP reported Ms McDonald has ‘limitation of movement’ Ms McDonald reported she is able to walk and stand for approximately 10 minutes at a time. She stated she occasionally uses a walking stick if she is having a bad day and her back pain is more severe. Ms McDonald reported that she was working full-time until last month. Ms McDonald reported she has difficulty with heavy household tasks such as vacuuming and cleaning the shower but is able to do grocery shopping.”

31. A discharge report from Westmead Hospital dated 30 April 2014  confirms Ms McDonald was admitted on 1 April 2014 and discharged on 30 April and notes that she was well at discharge. 

32. The report notes that Ms McDonald had chronic back pain for several years, that in September 2012 she had a laminectomy with L5/S1 decompression of the spinal and that she presented to the neurosurgical clinic because of increasing pain. CT guided nerve root injections were performed on the 8 and 14 April 2014. Follow-up plan was admission to “Baringa Private Rehab” in Coffs Harbour. 

33. In a Centrelink Medical Report dated 7 May 2014 Dr Dance, GP, notes that Ms McDonald’s current symptoms are “constant severe neuralgia (nerve pain) in lower spine and left leg. Pains going on for several months. Using wheely walker to assist walking” and notes functional impact as “Been unable to work for 5 weeks. Little walking ability. Sleep affected - tired by day. Movement restricted. Needs wheelie walker to walk. Has chair for shower. Not able to cook or do housework. Difficult to dress herself”. He also notes that residential rehabilitation treatment is planned at Baringa Hospital as soon as a bed is available.

34. A discharge report dated 27 June 2014 confirms that Ms McDonald was admitted to Westmead Hospital on 18 June 2014  for an acute exacerbation of chronic back pain and was discharged on 27 June 2014.

35. The report notes that Ms McDonald suffered “worsening back pain over the last 3 days” and was admitted for “conservative management, pain management and physiotherapy to control her pain”. Initially she was treated with a ketamine infusion and various oral analgesia and subsequently adequately managed on oral analgesia only. It was noted that Ms McDonald made good progress with physiotherapy and was now able to mobilise well with a 4 wheel walker. On discharge she was referred to the outpatient back care and hydrotherapy program and to the outpatient chronic pain service clinic.

36. In a letter dated 1 December 2014 Dr Jirjis states the following:

    “Teresa is unable to do most of the housework, needs to use a shower chair as she is unsteady of her foot, walks with the help of a frame, she is unable to bend forward to pick up any object from the ground, she is unable to turn her trunk to do daily activities like dressing, bathing, hanging clothes on the lines and that gives her extreme functional impact on her life activities and I give her 30 points on the impairment rating table”

37. In a brief letter dated 28 June 2015 Dr Jirjis asserts that he believes that Ms McDonald had “30 points impairment on the impairment rating table since 2012” but in my view does not provide satisfactory reasons for such an assertion.

    Consideration

38. It is clear from the evidence before the Tribunal that Ms McDonald has suffered back pain for many years which has caused functional impact on activities involving spinal function. What is not clear, however, is the level of functional impact that was present during the claim period.

39. In my view, the evidence clearly suggests that, during the claim period, Ms McDonald’s lumbar spine condition was not fully treated and stabilised, and significantly deteriorated after the end of the claim period during 2014.

40. For present purposes, however, I will assume that during the claim period her lumbar spine condition was fully treated and stabilised for the purposes of the Impairment Determination.

41. The corroborating evidence in respect of Ms McDonald impairment during the claim period is, in my view, somewhat problematic.

42. The two contemporaneous medical reports provided by Dr Jirjis are, in my view, incomplete and do not provide a satisfactory assessment of Ms McDonald’s impairment during the claim period. His letter of 1 December 2014 in which he asserts that Ms McDonald’s back problem “gives her extreme functional impact on her life and activities” is also unhelpful. On consideration of the other evidence it would appear that his assessment is more relevant to Ms McDonald’s circumstances in December 2014 and not to the claim period. Dr Jirjis’s assertion in his letter of 28 June 2015 that Ms McDonald “had 30 points impairment on the impairment rating table since 2012” is, in my view, implausible. The assertion is inconsistent with the other evidence and in my view demonstrates a lack of understanding of the purpose and principles of the Impairment Tables. I have placed little weight on these reports and letters.

43. The most helpful assessment is the JCA report of 3 September 2013 in which the assessor concludes that Ms McDonald’s lumbar spine condition caused a moderate functional impact and warranted a rating of 10 points under Impairment Table 4. This assessment was performed during the claim period and was based on Ms McDonald self-report of her impairment at that time.

44. After considering the evidence before the Tribunal and the descriptors in Impairment Table 4 I am satisfied that during the claim period Ms McDonald’s lumbar spine condition had a moderate impact on her activities involving spinal function and that a rating of 10 points under Impairment Table would have been appropriate.

    Depression

45. Ms McDonald told the Tribunal that she had suffered from depression and other mental health issues for many years. She claimed to have seen psychiatrists and psychologists at various times and was treated with medication on a number of occasions but she did not persist with medication because it did not help.

46. Ms McDonald said that in the period prior to date of claim for DSP and during the claim period she did not have any treatment or medication in respect of her mental symptoms but that treatment with an antidepressant, Avanza was subsequently started. She was unable to remember when the medication was started or who prescribed it. She told the SSAT on the 14 July 2014 that the Avanza was recently increased form 30 mg per day to 45 mg per day.

    Documentary Evidence

47. In his report of 22 August 2013 Dr Jirjis notes that Ms McDonald has been referred to Mr Lamarque, a psychologist, but makes no reference to any treatment.

48. In  his report of 22 November  2013  Dr Jirjis notes that  the diagnosis of “depression and anxiety” was confirmed by Mr Lamarque and that current treatment was “antidepressants   and counselling”

49. Dr Dance in a medical report dated 19 May 2014 notes that current treatment for depression is Avanza 30 mg nocte and that it was commenced on 4 November 2013.

50. In a letter dated 28 August 2014 Mr Lamarque notes that he saw Ms McDonald on two occasions but does not indicate the dates of consultation. He makes a diagnosis of “persistent depressive disorder” but makes no reference to treatment.

51. Relevantly Mr Lamarque is not endorsed as clinical psychologist by the Australian Health Practitioner Regulation Agency (AHPRA).

52. Ms McDonald was seen on one occasion by Dr Malik, consultant psychiatrist, who notes in a brief letter dated 18 November 2014 that Ms McDonald suffers from “chronic depression”

53. In a psychological assessment report dated 27 December 2014 Dr Chan, clinical psychologist, confirms a diagnosis of “Major Depressive Disorder Severe Recurrent Episode”. As a result of this report Centrelink was prompted to arrange a new JCA report which subsequently led to Ms McDonald qualifying for DSP as discussed above in [5].

    Consideration

54. 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, 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)”.

55. Although the diagnosis of depression was made in November 2013, it was not confirmed by a psychiatrist or clinical psychologist until November 2014. Therefore during the claim period the requirements of Impairment Table 5 were not satisfied which means an impairment rating cannot be applied.

56. Furthermore, even if the diagnosis had been confirmed at the end of the claim period in November 2013 there is insufficient evidence before the Tribunal to support a conclusion that the condition was fully treated and stabilised at that time.

    DECISION

57. For reasons set out above I am satisfied that during the claim period Ms McDonald did not have a rating of 20 points or more under the Impairment Tables. Therefore she did not satisfy section 94(1(b) of the Act and was not eligible to receive DSP.

58. The decision under review is affirmed.

I certify that the preceding 58 (fifty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated 18 August 2015

Date(s) of hearing	13 July 2015
Applicant	In person
Solicitor for the Respondent	Mr G Lozynsky, Department of Human Services