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

McLean and Secretary, Department of Social Services (Social services second review) [2017] AATA 640 (10 May 2017)
Division:GENERAL DIVISION
File Number(s): 2016/5825
Re:Simone McLean
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr Conrad Ermert, Member
Date:10 May 2017
Place:Melbourne

The Tribunal affirms the decision under review.
..............................[sgd]..........................................
Mr Conrad Ermert, Member
SOCIAL SECURITY - Disability Support Pension - qualifying period - date of claim - period of 13 weeks - whether physical, intellectual or psychiatric impairment - whether conditions fully diagnosed, fully treated and fully stabilised - whether impairment rating of 20 or more points can be allocated - decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 37
Social Security (Administration) Act 1999 sch 2 s 4(1)
Social Security Act 1991 s 94(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr Conrad Ermert, Member
10 May 2017
INTRODUCTION

On 1 April 2016 Ms Simone McLean, the Applicant, lodged with Centrelink a claim for Disability Support Pension (DSP). Centrelink is the service provider for the Secretary, Department of Social Services, the Respondent. In her application Ms McLean recorded her disabilities as: T3 T4 T6 T7 T8 L4 L5 S1 Disc prolapses + bulges. Shoulder pain. Cronic (sic) Tonic Seizure <28/10/2014.
On 18 May 2016 an officer of Centrelink rejected the claim on the basis that the impairments resulting from her conditions did not have an impairment rating of 20 points or more. Ms McLean sought review of the decision. On 5 August 2016 an Authorised Review Officer (ARO) of Centrelink affirmed the original decision.
Ms McLean sought a review of the ARO decision. On 22 October 2016 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the ARO decision. This matter is a review of the AAT1 decision by the General Division of the Tribunal.
HEARING
Both parties appeared at the hearing by telephone. Ms McLean represented herself at the hearing and gave her evidence under affirmation. Mr Joshua Lessing, a solicitor in the employ of Sparke Helmore Lawyers, represented the Respondent.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents). In addition I had a bundle of documents comprising medical reports, medical certificates, notices of appointments and other miscellaneous documents provided by Ms McLean.
For the Respondent I took in for consideration the Secretary’s Statement of Issues, Facts, Issues and Contentions dated 27 March 2017.
LEGISLATION
The relevant legislation is contained in the:
·Social Security Act 1991 (the Act),
·Social Security (Administration) Act 1999 (the Administration Act), and
·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
Section 94(1) of the Act details the requirements for qualification for DSP as follows:
(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…
Qualifying Period
Section 4(1) of Schedule 2 of the Administration Act requires Ms McLean’s qualification for DSP to be determined from the date of her claim to a date 13 weeks thereafter. In this case the qualifying period is 1 April 2016, the date of the claim, to 1 July 2016, that being a period of 13 weeks.
ISSUES
The issues I must determine are whether, during the qualifying period:
·Ms McLean had physical, intellectual or psychiatric impairments; and if so
·The impairments attracted a rating of at least 20 points under the Impairment Tables; and if so
·Ms McLean had a continuing inability to work.
EVIDENCE
Ms McLean chose to not lead evidence, preferring instead to respond to questions.
Back Condition
Ms McLean said she suffered a work injury in 1996. At the time she was working as a general maintenance hand, performing house cleaning, carpet steam-cleaning, lawn mowing and sometimes helping people with cooking. Ms McLean said she had five children at the time, three of whom were at school.
Ms McLean agreed that she returned to her general maintenance, gardening and cleaning work for about two years after 1998. From 2005 to 2011 she worked as a carer for children with special needs. In 2013 she was running a roadhouse and working about 90 hours per week.
In 1997 her General Practitioner (GP) referred her to Dr Leslie Koadlow, a rheumatologist, who gave her an epidural injection. Ms McLean also commenced a program of hydrotherapy. She agreed that the injection significantly improved her back pain. Ms McLean said she has not seen a neurosurgeon nor had further injections since 1997. She has had no treatment for her back since an appointment with Mr Lance Dickinson, a chiropractor, in July 1998.
In December 2014 Dr Nwankwo referred her to the Northern Hospital for an appointment with a neurosurgeon. Ms McLean is on the waiting list however her appointment has been cancelled three times already.
When referred to Medical Certificates of Dr Amit Singh, her GP, dated 9 September 2016 and 23 December 2016, which recorded the prognosis that the lower back pain is Likely to improve, Ms McLean agreed that she expected her back condition to improve after treatment.
When referred to the Job Capacity Assessment (JCA) report dated 12 February 2015, Ms McLean agreed that she told the assessor that she:
·could sit for 15 minutes with constant position changes;
·could walk up to one kilometre on a good day but could not walk 500 metres on a bad day;
·had difficulties standing to prepare and cook meals;
·had to lie down after vacuuming for 10 to 15 minutes; and
·was able to do her grocery shopping by supporting herself on the trolley.
Ms McLean added that her condition has deteriorated since that assessment. She agreed that she had continued her maintenance work up to 2013 after which she worked at the roadhouse, but then had to give up working.
Alcohol / Mental Health
Ms McLean agreed she had been seen by Dr Edward Cole, a psychiatrist, in 1998. She said that she had also been seen six or seven times in 2014 by Dr Ross Johnson, a psychologist. She contacted Dr Johnson recently to make an appointment to see him again. Dr Singh prescribes her anti-depressant medication. She will be seeing Dr Singh in a week’s time to arrange another detox session as her liver count is high.
Eye Condition
Ms McLean described her vision as one third in her left eye and two thirds in her right eye. She has a lump in her right eye which tested negative to a recent biopsy. Ms McLean said she can read with strong glasses. She was prescribed new glasses in February 2016 and had another eye test about two months ago. She requires no visual aid devices other than her glasses. She has not been examined by an ophthalmologist.
Seizure
Ms McLean agreed with the opinion of Dr Nwankwo in his medical report dated 12 November 2013 that her seizure was a result of alcohol withdrawal. She said that at the time she was severely dehydrated. She also accepted the results of the CT scan conducted on 13 October 2013 which concluded that the scan was normal. Ms McLean has had no seizures since that time. She said she can sense the onset of a seizure and takes a Valium to prevent its occurrence.
Hypertension
In regard to her hypertension Ms McLean said she measures her blood pressure every morning and takes her prescribed medication as needed.
Program of Support (PoS)
Asked about her Program of Support activities Ms McLean agreed she completed eight weeks of activities by the time she submitted her DSP claim. She said she had a number of medical certificates for periods of exemption. Ms McLean said she was doing a chef’s training course but had to withdraw when she was diagnosed with oral thrush. She said that she really wants to go back to work.
Continuing Inability to Work
When asked about her ability to work Ms McLean said she is still waiting for her appointment with a neurosurgeon and hopes that a cortisone injection will help her. She detailed her previous work experience:
·work as a seamstress;
·time out of the workforce having two children;
·work at a Road Chef roadhouse;
·time out for a third child;
·returned to work at the roadhouse;
·20 years as a subcontractor with her husband working for the Department of Human Services, including care for children with special needs; and
·work for 18 months with her husband running another roadhouse.
Ms McLean agreed that she continued working for about 13 years after her workplace injury. She agreed that all the specialists who examined her at the time of the accident reported that she would be able to re-join the workforce after re-training. Asked whether she could cope with less physically demanding jobs, Ms McLean said she checked the job vacancies every week but there were no jobs in the Seymour area. She said that some prospective employers would not employ her as she had previously been on Workcover.
Submissions
In her submissions Ms McLean said that had she known that her spinal condition would become such a problem she would not have done all the hard work, but stayed at home. She said she loved running the roadhouse. It was a happy workplace, and she wished she was still there. Ms McLean said there was no employment in country areas. She wants to get back into the workforce.
Mr Lessing submitted that the Tribunal can not take into account the availability of work. He acknowledged Ms McLean’s difficulty in accessing the recommended treatment for her back. He accepted that her back condition is fully diagnosed but contended that it is not fully treated and fully stabilised. In addition Mr Lessing contended that there is minimal corroborating evidence of the functional impairment from the condition.
Mr Lessing argued that, as Ms McLean has not completed the required 18 months participation in a PoS she would need an impairment rating of 20 points from a single Impairment Table in order to be eligible for exemption from the PoS requirement. He contended that there was no evidence to support a rating of 20 points for any of Ms McLean’s conditions.
Mr Lessing otherwise relied on the contentions in the Secretary’s Statement of Issues, Facts and Contentions.
TRIBUNAL CONSIDERATIONS
Impairments (section 94(1)(a) of the Act)
The Respondent accepts that Ms McLean suffers a number of impairments and that she satisfies the provisions of section 94(1)(a) of the Act. I am satisfied that the medical evidence supports this concession and I find accordingly.
Impairment Rating (section 94(1)(b) of the Act)
I will now consider each condition and determine whether Ms McLean’s impairments attract an impairment rating of 20 or more points in order to satisfy section 94(1)(b) of the Act.
Section 6(3)(a) of the Impairment Tables states that a rating can only be assigned if the condition is permanent. Section 6(4) provides that a condition is permanent if the condition:
(a)has been fully diagnosed by an appropriately qualified medical practitioner, and
(b)has been fully treated, and
(c)has been fully stabilised.
Spinal Disorder
The Respondent accepts that Mc McLean’s spinal condition was fully diagnosed during the qualifying period. I am satisfied that the numerous medical reports of Dr Nwankwo and the results of an MRI scan performed on 13 November 2014 support the concession and I find accordingly.
Ms McLean’s evidence is that she has not been seen by a neurosurgeon since 1987, nor had treatment for her back since her chiropractic treatment in 1988. She said that Dr Nwankwo referred her to the Northern Hospital in December 2014 for further review and treatment by a neurosurgeon, however she is still waiting for an appointment. She experienced an improvement after her earlier cortisone injection and expects an improvement from her next treatment.
I note in the bundle of documents a confirmation of her appointment for 12 May 2016, followed by notices of postponement to 16 June 2016 and 15 September 2016. I note also medical certificates by Dr Singh dated 15 July 2016, 19 August 2016, and 23 December 2016 that record a prognosis for the condition as Likely to improve.
I note the report of Dr Lakkaraju dated 14 November 2014 recording his findings from a full MRI scan of Ms McLean’s spine. His conclusion is In the present circumstances a neurosurgical opinion is suggested. The evidence is that Ms McLean is still awaiting a neurosurgical examination.
From the evidence of Ms McLean and the medical evidence I am satisfied that during the qualifying period the spinal condition was not fully treated and not fully stabilised. I find accordingly. As a result the condition is not permanent in the terms of the Impairment Tables and I am unable to assign an impairment rating to the condition.
Hip Condition
In his report dated 22 May 2013 Dr Nwankwo recorded a diagnosis of right trochanteric bursitis with onset in 2012. On the basis of the report the Respondent accepts that the hip condition was fully diagnosed. I accept this concession and I find accordingly.
I have no evidence of any treatment being prescribed or undertaken for this condition. Nor have I any corroborated evidence that the condition causes an impairment to Ms McLean’s ability to function. I am satisfied that during the qualifying period Ms McLean’s right hip condition was not fully treated and not fully stabilised. As a result the condition is not permanent in the terms of the Impairment Tables and I am unable to assign an impairment rating to the condition.
Alcohol Dependence / Mental Health Condition
In the Secretary’s Statement of Facts, Issues and Contentions the Respondent links alcohol dependence and mental health condition into a combined condition. I will consider them as two separate conditions.
Excessive Use of Alcohol
The Impairment Table relating to alcohol conditions is Table 6 – Functioning related to Alcohol, Drug and Other Substance Use. The Introduction to Table 6 relevantly provides that Table 6 is to be used where the person has a permanent condition resulting in functional impairment due to excessive use of alcohol.
Diagnoses relating to an alcohol condition are contained in the following reports:
·Dr Nwankwo dated 22 May 2013 which records Excessive alcohol drinking / abuse of alcohol as a condition that is generally well managed and causes limited impact on ability to function;
·Dr Yin dated 15 October 2013 which records Alcohol Withdrawal as a temporary condition; and
·Dr Nwankwo dated 19 November 2014 which records Psychological illness – causing more depressive symptoms and excessive alcohol drinking as a condition that is generally well managed and causes limited impact on ability to function.
In his report dated 26 April 2016 a Job Capacity Assessor recorded Ms McLean stated she drinks one bottle of wine daily to manage back pain. She had previous counselling, attended Odyssey House for one week, and has her liver functioned (sic) monitored regularly.
I am satisfied that a diagnosis of excessive use of alcohol has been made by two of Ms McLean’s GPs. I am satisfied that a GP is appropriately qualified to make such a diagnosis. I find that a condition of excessive use of alcohol has been fully diagnosed at the time of the qualifying period. I am satisfied from the evidence of Ms McLean, as recorded by the Job Capacity Assessor, that the condition has been treated by her attendance at Odyssey House and the continuing monitoring of her kidney function. From the classification by Dr Nwankwo of the condition as well managed I am satisfied that the condition is fully stabilised.
I find that the condition is permanent in the terms of the Impairment Tables and can be assigned an impairment rating.
The mild descriptors of Table 6 – Functioning related to Alcohol, Drug and Other Substance Use state:

Points

Descriptors

5

There is mild functional impact from alcohol, drugs or other harmful substance use.

(1)    At least one of the following applies:

(a)    the person engages in alcohol or illicit drug use and experiences some physical or cognitive effects that carry over into working hours (e.g. poor concentration, lethargy, irritability); or

(b)    the person has occasional difficulties in reliably attending work, education or training sessions or appointments or completing duties or assigned tasks; or

(c)    the person is sometimes absent from work, education or training activities due to the effects of alcohol, drugs or other harmful substance use.

There is no evidence of a functional impairment from this condition other than a requirement for a periodical detox session. I am not satisfied that Ms McLean meets the requirements for an assignment of a mild rating, or any higher rating. I assign an impairment rating of zero points to this condition.
Mental Health Condition
In his report dated 4 May 1998 Dr Edward Cole, psychiatrist, recorded a diagnosis of chronic anxiety state and reactive depression of mild to moderate degree. In his report dated 19 November 2014 Dr Nwankwo records a condition of psychological illness. As the qualifying period commenced only four months later I am satisfied that a fully diagnosed mental condition was still in existence at the qualifying period.
Ms McLean’s evidence was that she continued to take anti-depressant medication as prescribed by her GP. There is no evidence of prescribed treatment other than medication. Ms McLean gave evidence of recent visits to a psychologist however these visits were not related in any way to this claim for DSP. I am satisfied from Dr Nwankwo’s categorisation of the condition as one that is generally well managed that the condition is fully treated and fully stabilised. Accordingly I find that the condition is permanent in the terms of the Impairment Tables and I am able to assign an impairment rating to the condition.
Dr Nwankwo recorded the condition as one that causes minimal or limited impact on ability to function. I have no corroborated evidence of any greater level of impairment on Ms McLean’s ability to function as a result of this condition. I assign an impairment rating of zero points to this condition.
Eye Condition
The Impairment Table appropriate to an eye condition is Table 12 – Visual Function. The Introduction to Table 12 provides that the diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from on ophthalmologist. Ms McLean’s evidence was that she has never been examined by an ophthalmologist. There is no evidence from an ophthalmologist in the material before me. I am not satisfied that the condition has been fully diagnosed in the terms of the Impairment Tables and I find accordingly.
As the condition is not fully diagnosed it is not permanent in the terms of the Impairment Tables and I am unable to assign an impairment rating to the condition.
Seizure
In his report dated 13 October 2013 Dr Yin records a diagnosis of seizure with an onset of 13 October 2013, described as a temporary condition. In his report dated 12 November 2013 Dr Nwankwo records Alcohol withdrawal seizure related to the same incident on 13 October 2013. There are no further medical records relating to this incident.

I have no evidence that the condition was anything other than a one-off incident. I am satisfied that during the qualifying period Ms McLean did not suffer from this condition. Accordingly I am unable to assign an impairment rating to the condition.
Hypertension
In a medical certificate dated 29 September 2014 Dr Nwankwo recorded a diagnosis of hypertension. Ms McLean gave evidence that she monitors her blood pressure every morning and takes her prescribed medication. I have no evidence that the condition causes any impact on Ms McLean’s ability to function.
I find that during the qualifying period the condition was fully diagnosed, fully treated and fully stabilised and it caused no impact on Ms McLean’s ability to function. I assign an impairment rating of zero points to this condition.
Total Impairment Rating
I have found that during the qualifying period Ms McLean’s conditions attracted the following assessments:
·Spinal disorder – not fully treated and not fully stabilised; unable to assign an impairment rating;
·Hip condition – not fully treated and not fully stabilised; unable to assign an impairment rating;
·Excessive use of alcohol – zero impairment points;
·Mental health condition – zero impairment points;
·Eye condition – not fully diagnosed; unable to assign an impairment rating;
·Seizures – not suffered during the qualifying period; unable to assign an impairment rating; and
·Hypertension – zero impairment points.
The total impairment rating in the qualifying period is zero points. This is not sufficient to satisfy the requirements of subsection 94(1)(b) of the Act.
CONCLUSION
As Ms McLean’s impairments do not satisfy subsection 94(1)(b) of the Act, she can not meet all the requirements of section 94(1) of the Act. As she can not meet all other requirements of section 94(1), I have no need to consider the provisions of subsection 94(1)(c) of the Act.
I find that, in the qualifying period, Ms McLean was not qualified for the receipt of DSP. This means that the decision of the AAT1 is the correct and preferable decision.
I further note that Ms McLean clearly wants to return to the workforce. She would benefit from any assistance the Respondent could provide to find employment suited to her conditions.
DECISION
I affirm the decision under review.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

..........................[sgd]..............................................
Associate
Dated: 10 May 2017

Date of hearing: 6 April 2017

Applicant: By Telephone

Advocate for the Respondent: Mr Joshua Lessing

Solicitors for the Respondent: Sparke Helmore Lawyers

[2017] AATA 640

10 May 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	6 April 2017
Applicant:	By Telephone
Advocate for the Respondent:	Mr Joshua Lessing
Solicitors for the Respondent:	Sparke Helmore Lawyers