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

[2017] AATA 562

Morunga and Secretary, Department of Social Services (Social services second review) [2017] AATA 562 (28 April 2017)

Division:GENERAL DIVISION

File Number(s):      2016/2991

Re:Narelle Morunga

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:28 April 2017

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – bilateral knee pain – anxiety – depression – applicant has a physical and psychiatric impairment – the impairments do not total more than 20 points under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth) s 42, Sch 2

Social Security Act 1991 (Cth) s 94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A Poljak

28 April 2017 

1. Ms Morunga seeks review of a decision made by the Social Security and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) on 19 February 2016. The SSCSD affirmed a decision made by the Department of Social Services (“the Department”) on 5 October 2015, and affirmed by an Authorised Review officer (“ARO”) on 26 November 2015, refusing Ms Morunga’s claim for the disability support pension (“DSP”) which was lodged on 18 June 2015.

2. Ms Morunga’s claim for DSP was rejected on the basis that she did not satisfy the eligibility criteria set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

3. For Ms Morunga to qualify for DSP, she had to satisfy these criteria on 18 June 2015, when she applied for the DSP, or within the following 13 weeks, that is, by 17 September 2015 pursuant to s 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”).

4. The Secretary contends that the medical evidence does not support a finding that Ms Morunga was qualified for DSP during the relevant period.

5. The Secretary accepts that Ms Morunga suffered from a number of conditions during the relevant period including anxiety, depression, back pain, asthma, hypertension and obesity. She therefore satisfies section 94(1)(a) of the Act.

   IMPAIRMENT TABLES

6. The first issue for determination in these proceedings is whether the conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

7. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in s 3 to mean “a loss of functional capacity affecting a person’s ability to work that result from a person’s condition”. 

8. Subsections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years. 

9. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred and whether treatment is still continuing or is planned in the next two years.

10. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean:

    (a)…the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.

11. Reasonable treatment is defined in subsection 6(7) as treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

12. It is important to note that for multiple conditions causing a common problem (impairment), subsections 10(5) and 10(6) of the Impairment Tables provide:

    (5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

    (6) …it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once. (emphasis added)

13. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each Table and a rating cannot be assigned between consecutive impairment ratings. Significantly, s 11(1)(c) provides:

    (c)         if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)

    Lower Limb Function - Bilateral Knee Pain

14. Dr Cain first reports the condition of bilateral knee pain in his report dated 19 September 2016. This is well outside of the relevant period. In the report, Dr Cain states:

    “Narelle has bilateral knee pain. This has been present for many years, and has been much more severe over the last few months.

    Knee x-rays done on 22/6/2016 show severe Osteoarthritis of the right knee, and mild Osteoarthritis of the left knee.

    This pain will continue to worsen. It will never improve.”

15. It also appears from this report that Ms Morunga’s knee pain has recently worsened.  As such, on the evidence at hand, I am not satisfied that Ms Morunga’s lower limb condition was fully diagnosed, treated and stabilised during the relevant period.

    Mental Health Function - Anxiety and Depression

16. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment.

17. The Introduction to Table 5 of the Impairment Tables provides (inter alia):

    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 by a psychiatrist). (emphasis added)

18. However, before functional impact is to be assessed I must be satisfied that the condition is fully diagnosed, fully treated and fully stabilised.

19. The Secretary accepts, and I agree, that Ms Morunga’s mental health condition was fully diagnosed, treated and stabilised during the relevant period. The evidence of Dr Cain that psychiatrist Dr Peter Ross confirmed the diagnosis and the letter of Kristie Meldrum, registered nurse from the Kempsey Mental Health Acute Care Service, dated 21 July 2015 supports this.

20. Dr Cain advises in his report dated 19 September 2016, the following:

    “Narelle has a long history of depression, and anxiety and panic attacks. These conditions have been diagnosed by a psychiatrist.

    This has been much more severe over the last several months, and she is on treatment for this with antidepressants and benzodiazepines. She sees a psychologist, and a psychiatrist. There has been no improvement in this condition. It will continue at the present level.”

21. Dr Cain gave oral evidence at the hearing. He confirmed that Ms Morunga has undergone “lots of therapy” since early 2015 and has tried “lots of medication” with no improvement, although her condition “waxes and wanes”.  

22. Having regard to the medical evidence, I am satisfied that Ms Morunga has engaged in reasonable treatment for her condition with no improvement. Her condition is not expected to significantly improve in the next two years. Accordingly, her mental health condition is regarded as fully treated and stabilised. This then leaves the question of functional impairment.

23. During a Job Capacity Assessment (“JCA”) undertaken on 16 September 2015, Ms Morunga reported that she continues to have psychological support and that as she finds going to large supermarkets or shopping centres overwhelming, some of her friends do her shopping. She reported that she could go to her local supermarket and attend her appointments alone.

24. The JCA report, dated 1 October 2015, states that Ms Morunga indicated she could socialise with her small group of friends although she preferred to stay at home. Ms Morunga said she found it very difficult to concentrate on longer tasks for more than 30 minutes. She reported that on some days she had difficulty with her moods and had poor motivation to attend daily activities.

25. The SSCSD found that Ms Morunga needed support from her housemate/carer in order to live independently and maintain adequate hygiene; that she had few social contacts or recreational activities and is reluctant to travel anywhere; she has difficulty sustaining interpersonal relationships; she is not psychotic and has not exhibited any antisocial behaviour and she concentrates poorly.

26. Ms Morunga advised at hearing, that on a typical day she would rise early, have coffee, watch the news and play games. She said she didn’t leave her room “much at all” and would occasionally have days where she could not shower or leave her room.

27. It is important to note that self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment. The medical evidence broadly supports the symptoms reported by Ms Morunga, which I have relevantly summarised below.

28. Matthew Musgrave, social worker at the Kempsey Community Mental Health Service, reports in a letter dated 10 March 2016, that Ms Morunga is “troubled with poor sleep, reduced appetite, severe panic attacks and low mood.” He notes that she is “frequently unable to keep appointments due to her mental illness and has a high degree of associated disability and is unable to fulfil normal activities of daily living.”

29. The Medical Certificate of Dr Das dated 6 May 2014, notes “avoids socialising; impaired concentration; angry outbursts”.

30. Dr Cain says in the Medical Report dated 29 July 2015, that Ms Morunga was “unable to work because of lowered mood/poor motivation/poor concentration and unable to complete tasks.”

31. At hearing, Dr Cain advised that Ms Morunga was able to do tasks associated with daily living around the home. In regards to activities outside of the home, he advised that she would “need some help”. Dr Cain said that she could drive.

32. In regards to interpersonal relationships, Dr Cain advised that Ms Morunga’s relationships were limited to immediate family. He opined that she was moderately to severely impaired when it came to task completion and concentration.

33. Having careful regard to all of the evidence, and the descriptors contained in Table 5 of the Impairment Tables, I find that a rating of 10 impairment points is appropriate for Ms Morunga’s mental health condition.

    Other Conditions

34. Ms Morunga’s other conditions of back pain; asthma; hypertension and obesity cannot be assigned an impairment rating under the Impairment Tables. There is insufficient medical evidence to find that these conditions were fully treated and stabilised during the relevant period.

35. In any event, Dr Cain notes in his Medical Report dated 29 July 2015, that these conditions were generally well managed and caused minimal or limited impact on Ms Morunga’s ability to function.

    CONCLUSION

36. Since Ms Morunga’s conditions do not rate 20 or more points under the Impairment Tables it is not necessary for me to consider whether she had a continuing inability to work during the relevant period.  It follows that her claim for DSP cannot succeed.

37. I affirm the decision under review. 

38. Ms Morunga may apply for DSP again at any time.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated: 28 April 2017

Date(s) of hearing:	24 February 2017
Applicant:	By telephone
Solicitors for the Respondent:	Carmen Juarez, Department of Human Services