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

[2016] AATA 336

Megens and Secretary, Department of Social Services (Social services second review) [2016] AATA 336 (27 April 2016)

Division	GENERAL DIVISION
File Number	2015/5159
Re	Shirley Megens
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	27 April 2016
Date of written reasons	24 May 2016
Place	Melbourne

The Tribunal determines that Ms Megens’ impairment rating is 20 points in total, attracting 10 points for her loss of vision in her left eye and 10 points for loss of hearing in her left ear, associated with disturbances of balance and nausea impacting on her cognition. The decision under review is affirmed.

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Miss E A Shanahan, Member

SOCIAL SECURITY – pensions benefits allowances – claim for disability support pension – meningioma at skull base involving middle cranial fossa and compressing optic nerve, bone and veins – loss of vision left eye – loss hearing and balance left ear – tumour not resectable – treatment aimed at debulking – impairment rating increased to 20 points – program of support not completed – decision that not qualified for DSP affirmed

Legislation

Administrative Appeals Tribunal Act 1975

Social Security Act 1991

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

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

REASONS FOR DECISION

Miss E A Shanahan, Member

24 May 2016

1. Ms Megens lodged a claim for Disability Support Pension (DSP) on 16 March 2015.  Her general practitioner, Dr Teh, provided medical reports supporting her claim, being her diagnosis in 2009 of a left sphenoid wing meningioma with an uncertain prognosis and effect on life expectancy.  The treatment had been described as DEBULKING OF TUMOR [sic] which had resulted in loss of sight, loss of smell, vertigo and hearing loss, the loss of vision and hearing being on the left.   Ms Megens had been diagnosed with schizophrenia in 2006.  There have been episodes of blurring of vision in the right eye, first reported in 2009. 

2. The Job Capacity Assessment (JCA), performed on 13 April 2015, allotted an impairment rating of 15 points, with 10 points for loss of hearing and other functions of the left ear and 5 points for the loss of functional activity relating to vision due to blindness in the left eye under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables). Ms Megens’ claim for the DSP was rejected by a Centrelink delegate, on the basis that she did not meet the requirements of s 94(1)(b) of the Social Security Act 1991 (the Act). Following a request for internal review, the rejection was affirmed by an Authorised Review Officer (ARO) on 28 May 2015. 

3. Ms Megens lodged an application for review with the then Social Security Appeals Tribunal (SSAT) on 9 July 2015 and a hearing was conducted by the Administrative Appeals Tribunal, Social Services and Child Support Division (AAT 1^st Tier) on 15 September 2015.  The Tribunal determined that the impairment rating for Ms Megens’ loss of hearing in the left ear with nausea and balance difficulties attracted an impairment rating of 10 points, as did her visual loss in accordance with the Table 12 of the Impairment Tables, which describes moderate functional impact on activities of visual function.

4. As Ms Megens did not have a severe impairment, that is one that attracts 20 points under a single impairment table, she was required to undertake a program of support as required by s 94(2)(aa) of the Act and as defined by the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Participation Determination). The AAT 1st Tier determined that, as Ms Megens did not satisfy s 94(1)(c) of the Act, she did not qualify for the DSP at the time of her application or within three months of that date.

5. Ms Megens was self-represented and Mr Tim Noonan appeared for the Secretary, Department of Social Services (the Secretary). The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T‑documents).  Ms Megens gave sworn evidence before the Tribunal. 

   BACKGROUND TO THE APPLICATION

6. Ms Megens first presented with progressive blindness of six months duration and more recent blurring of vision in the right eye.  Ms Megens was referred by Dr Teh to Professor Andrew Kaye as a matter of urgency and seen on 20 July 2009.  Professor Kaye noticed mild proptosis of the left eye, in which there was no perception of light and the optic disc was atrophied.  Visual acuity in the right eye was 6/5 and the field of vision was not limited. 

7. Ms Megens underwent both CT scanning and an MRI (Magnetic Resonance Imaging) of the brain, which showed an extensive middle fossa mass resembling a meningioma  invading into the orbit, extending across the midline, compressing the optic chiasma and extending into the paranasal sinuses.  At the time, Professor Kaye recorded that Ms Megens had schizophrenia for which she was taking Abilify.  Arrangements were made for a full visual assessment and further MRI to assist in surgical planning. 

8. Mr Mark Daniel, ophthalmologist, performed a full visual assessment noting that in addition to loss of all perception of light in the left eye there was also a pupil defect, proptosis of 3mm and left optic nerve atrophy.  The examination of the visual field on the right appeared to be normal, although the test was technically unreliable.  He concluded that there was no evidence of optic nerve or chiasmal compression affecting the right eye in July 2009. 

9. A further MRI confirmed the original findings, but also showed that the tumour extended into the pituitary fossa. Professor Kaye recommended surgery. Although it would not be possible to perform a complete surgical excision and cure the tumour, it required debulking to control its pressure effects on the intracranial structures. 

10. On 29 September 2009, Ms Megens underwent a left sided craniotomy with orbital decompression and excision of as much of the meningioma as was possible.  Much of the hyperostatic bone of a sphenoidal wing was drilled away, the orbit was opened, the bone was excised across the roof of the orbit and the tumour invading into the orbit was partially resected.  The tumour was found to be encasing the left optic nerve and the internal carotid artery, compressing the optic chiasma and the right optic nerve.  The tumour in the region was resected, with decompression of the optic chiasma and right optic nerve. The resection extended across the floor of the middle cranial fossa.  At the completion of the procedure all macroscopic tumour had been resected, but it was still believed there was extensive tumour invading the skull base. 

11. Ms Megens has been followed regularly by the Neurosurgical Outpatient Clinic. In November 2010, Ms Megens was noted to have a reduced sense of smell, a reduction in her visual acuity in the right eye and reduced sensation in the distribution of the 5^th and 7^th cranial nerves.  Repeat MRIs and CT scans showed extensive skull base meningioma with extension into the nasopharynx.  Mr James King, neurosurgeon and Professor Briggs, ear, nose and throat surgeon (ENT surgeon), recommended further debulking of the meningioma by endoscopic resection performed through the nose and base of the skull.

12. Ms Megens was reviewed again on 4 August 2014, with repeat CT and MRI investigations which once more show a very extensive lesion in the sphenoid bone extending into the middle fossa and the pituitary fossa, but there is no evidence of compression of the right optic nerve.  She continues to have vertigo and hearing loss and was to be reassessed by Professor Briggs with a view to further surgical resection.

13. Ms Megens has since been placed on the waiting list for further trans-sphenoidal resection, although she told the Tribunal that Professor Briggs was not terribly keen to again perform such a resection.  She has not been reviewed by the Neurosurgical Unit since August 2014 as she has been on the waiting list of Professor Briggs.  Ms Megens has arranged to have a further assessment at the Royal Melbourne Hospital in the next few months.

14. Mr James King, neurosurgeon, has provided a report dated 19 August 2015 concerning Ms Megens, confirming that she has an extensive intracranial tumour giving rise to significant symptoms of headaches, facial pain, hearing loss and ongoing visual loss.  Mr King describes the meningioma as an incurable brain tumour, likely to be progressive over time. He does not believe that she has the capacity to work at the present time and is unlikely to be able to work in the long term. 

15. Dr Teh, the treating general practitioner, has confirmed by letter dated 19 May 2015 that Ms Megens cannot drive at night because of her visual loss and finds driving extremely difficult, especially in wet weather conditions.  She requires the use of a large screen when using a computer.  In her evidence before the Tribunal, Ms Megens confirmed the accuracy of all these reports.  She had asked Mr King to provide an impairment rating but he was unable to do so, not being familiar with the requirements.

    RELEVANT LEGISLATION

16. The qualifications for the DSP are outline in s 94 of the the Act which states:

    94  Qualification for disability support pension

    (1)       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;

    (ii)     the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

    Continuing inability to work

    (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)   in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008 2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)     in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)     in all cases—either:

    (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

    Note:For work see subsection (5).

    (3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

    Active participation in a program of support

    (3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

    Other definitions

    (5)In this section:

    program of support means a program that:

    (a)     is designed to assist persons to prepare for, find or maintain work; and

    (b)     either:

    (i)is funded (wholly or partly) by the Commonwealth; or

    (ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

17. The Impairment Tables applying to Ms Megens’ hearing and visual loss are Table 11 and Table 12. 

    SUBMISSIONS

18. Ms Megens submitted that her impairment rating should be 20 points, as determined by the AAT 1^st Tier and she provided evidence that she was currently participating in a Program of Support with Advanced Personal Management, but had to have three months off from this course from May 2015.  She has been required to apply for jobs three to four times per week but has not been successful. 

19. The Secretary relied on its Statements of Facts and Contentions which, in summary, argued that Ms Megens did not qualify for the DSP in that she did not have a serious disability attracting 20 points under one impairment table such that she could be excused from the requirement that she undergo a Program of Support and therefore did not s 94(1)(c) of the Act.

    TRIBUNAL’S DELIBERATIONS

20. Ms Megens has been very well investigated and, within the limits imposed by the intracranial anatomy, has had appropriate treatment for what is a rare situation of a large infiltrating meningioma in the base of the skull.

21. Despite the surgical intervention, Ms Megens does have residual defects in the form of total loss of vision in her left eye and loss of hearing in the left ear, with associated problems of balance, vertigo, occasional nausea and some sensory loss in the distribution of the facial and trigeminal nerves on the left side.  She also suffers from headaches. All of these symptoms impact on her ability to concentrate and affect her cognition and impact on her ability to drive.  She only drives locally around her home in The Basin and does not drive in wet weather or after sunset. 

22. Based on the medical reports, Ms Megens is likely to require further debulking surgery, it being clearly stated that a curative resection is not possible given the siting of this tumour.  The Tribunal rejects the JCA impairment rating recommendation in relation to Ms Megens visual impairment and determines that she attracts an impairment rating of 10 points.  The Tribunal accepts the JCA impairment rating recommendation of 10 points in relation to Ms Megens loss of hearing and other functions of the left ear.

23. Ms Megens states that her schizophrenia has no impact on her capacity for work. Therefore, no points are allocated for that condition.

24. The Tribunal therefore allocates a total impairment rating of 20 points for the two conditions impacting on Ms Megens sight and hearing. As Ms Megens does not have 20 points under one impairment table that would satisfy the definition of a severe impairment, she is required by the Act to undertake a Program of Support during the three years prior to her application for the DSP. She is well on her way to having completed such a Program of Support, following which she should re‑apply for the DSP.  Currently she does not satisfy the requirements of 94(1)(c), nor did she do so in the review period between 16 March 2015 and 16 June 2015.

25. The Tribunal affirms the decision under review, allocating an impairment rating of 20 points but finding that Ms Megens does not satisfy the requirements of s 94(1)(c) of the Act.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the written reasons herein of Miss E A Shanahan, Member.

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Associate

Dated   24 May 2016

Date of hearing	27 April 2016
Applicant	In person
Advocate for the Respondent	Tim Noonan
Solicitors for the Respondent	Department of Human Services