MS KAREN BROWN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 211
•26 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 211
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3508
GENERAL ADMINISTRATIVE DIVISION ) Re MS KAREN BROWN Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr D M Connolly AM, Member Date26 March 2010
PlaceSydney
Decision The decision under review is set aside.
...................[sgd].................
Mr D M Connolly AM
Member
CATCHWORDS
SOCIAL SECURITY - cancellation of disability support pension – whether Tribunal has jurisdiction to consider new entitlement after cancellation – whether impairment is “permanent” – whether condition is “fully diagnosed, treated and stabilised” ––decision under review is set aside.
Social Security Act 1991 –s 94, Schedule 1B,
Social Security (Administration) Act 1999 – s 39(2), s 80, Schedule 2
Freeman v Respondent, Department of Social Security (1988) 15 ALD 671
Re Muir and Respondent Department of Employment and Workplace Relations [2005] AATA 902
Re Sergeant and Respondent Department of Family and Community Services [2005] AATA 1076
Respondent, Department of Social Security v Pusnjak (1999) 56 ALD 444
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
26 March 2010 Mr David Connolly AM, Member The decision under review
1. Ms Brown (the Applicant) has applied to the Tribunal for a review of the decision made by Centrelink on 9 October 2007 (‘the relevant date’) to cancel her disability support pension (‘DSP’) on the basis that she did not have at least 20 points under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (‘the Act’).
Background
2. Ms Brown, aged 55 years at the time of hearing, has been in receipt of a DSP since 9 April 1992 when following a home accident she was diagnosed as having pain in her lower back and referred pain in her lower leg. Over the intervening years she had a number of medical reviews which confirmed her continuing entitlement to the DSP. She has been out of paid workforce for about 17 years.
3. In 2007, Centrelink reviewed Ms Brown’s continuing eligibility for DSP. Ms Brown provided treating doctor’s reports from Dr Hillman, general practitioner, dated 16 July 2007 and 9 October 2007. The reports listed her medical conditions as chronic low back pain, hypertension, insomnia and hepatitis C with normal liver function tests.
4. On 20 August 2007 Ms Brown underwent a face-to-face job capacity assessment conducted by Ms Hilton, registered psychologist. Ms Brown was assessed as having a loss of one half range of normal movement in her lower back and assigned an impairment rating of 10 points under Table 5.2 of the Impairment Tables. Ms Brown’s other conditions were not assigned any impairment rating.
5. On 9 October 2007 Centrelink cancelled Ms Brown’s DSP on the grounds that she did not have an impairment rating of at least 20 points, pursuant to section 80 of the Social Security (Administration) Act1999.
6. Ms Brown sought a review of that decision. She underwent a face-to-face job capacity assessment on 13 November 2007 conducted by Ms Chambers, a social worker, and was again assessed as having an impairment rating of 10 points for her low back condition. Ms Brown also provided a report from her treating doctor, Dr Kumar, dated 17 January 2008. In that report Dr Kumar identified multilevel lumbar disc bulge, anxiety and depression, and rheumatoid arthritis as her medical conditions. On 25 January 2008 Ms Brown underwent a further job capacity assessment. She was assessed as having a permanent condition of musculo-skeletal disorder related to her back pain condition with a future capacity to work with intervention in light and less-skilled employment.
7. On 1 February 2008 an authorised review officer (ARO) affirmed the original decision to cancel Ms Brown’s DSP. The Social Security Appeals Tribunal (SSAT) decision of 25 June 2008 affirmed the original decision. Ms Brown now seeks a review of the decision at the Administrative Appeals Tribunal.
Discussion
8. The Respondent provided the Tribunal with the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), and a report by Dr Margaret Gibson dated 9 December 2007. Ms Brown represented herself at the hearing and the Respondent was represented by Ms Prasad of Centrelink Advocacy Branch. Ms Brown’s daughter Ms Renée Brown gave evidence at the hearing.
9. Since the hearing on 23 June 2009, Ms Brown provided the Tribunal with additional medical records from the Wentworth Area Health Service dated 1998, a report by Dr Max Ellis dated 20 May 1998, and a pathology report sent to Dr Kumar dated 5 June 2009. In response to the additional material the Respondent also provided supplementary written submissions.
10. Following the hearing at the Tribunal, Ms Brown indicated via written correspondence dated 13 October 2009 that she had lodged a new claim for a DSP with Centrelink on 14 August 2009, and that the claim was approved on 7 October 2009. Further, Ms Brown made a particular note of her contention that she was entitled to the DSP “all along” since the cancellation of her DSP benefits on 9 October 2007.
11. Before dealing with the substantive contentions and evidence concerning her eligibility against the criteria for DSP entitlement, it is necessary to first clarify whether the Tribunal has jurisdiction to consider Ms Brown’s entitlement for the DSP “all along”, that is, her entitlement from the date of the cancellation up until the date of the hearing. The question is two-fold. First question is whether the Tribunal has jurisdiction to consider Ms Brown’s qualification for the DSP since the cancellation dated 9 October 2007 and to restore her DSP payment as at the date of her re-qualification. Second question is whether, in determining correctness of the original cancellation decision, the Tribunal should confine itself to taking account of the events that had occurred up to the date of the original decision.
12. The Federal Court commented in Freeman v Respondent, Department of Social Security (1988) 15 ALD 671 regarding the effect of the commencement provisions of the Social Security Act 1947 (Cth), that the ambit of the Tribunal’s jurisdiction in relation to the review of a decision to cancel benefit is less than would be the jurisdiction of the Tribunal in respect of a refusal to grant benefit. Davies J notes at 674-675:
… However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal’s jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration in accordance with s 19 [of the 1947 Act].
....
... the nature of a cancellation of the pension is different in substance and effect from that of suspension. A decision suspending a pension has an on-going effect and the suspension may be terminated at any appropriate time. It may well be within the ambit of the Tribunal’s decision to terminate a suspension if the facts before the Tribunal showed that the pension or benefit ought to have been suspended only up to a particular date. A decision cancelling a pension does not have on-going effect in that way. A decision cancelling a pension or benefit brings to an end the entitlement… Entitlement to the pension or benefit only revives on the lodgement of a proper claim for the grant of the pension or the benefit.
13. Subsection 39(3) and clause 4, Schedule 2 of the Social Security (Administration) Act 1991 provide potential applicants a way to seek backdating or postdating of the “start day” of re-entitlement following an administrative review of a cancellation decision. Under these provisions, if a person made a claim for a social security payment and if the person was not qualified on the date of the claim but became qualified within the 13-week period thereafter, the claim would be treated as a valid claim and would be taken to be made on the day on which the person became eligible.
14. As noted earlier, Ms Brown lodged a fresh claim on 14 August 2009 and that claim was subsequently granted. No other claim was lodged by Ms Brown between 7 October 2007 and 14 August 2009. Had Ms Brown lodged a fresh claim for the DSP every 13 weeks between the date of the original decision and the date of the AAT hearing, and made fresh applications to the SSAT and the AAT regarding the result of those claims, the Tribunal would have been placed in a position to consider her entitlement to a DSP with respect to those 13-week periods relating to her claims, and to effect a reinstatement of her DSP payment from the date on which she was found to have become requalified.
15. With regard to the present application for review, however, the Tribunal’s jurisdiction extends only so far as considering whether the decision to cancel Ms Brown’s DSP was correct as at 9 October 2007. In order to answer this question the Tribunal will consider whether she had in fact been qualified for the DSP as at 9 October 2007. If the Tribunal finds that she was not qualified as at that date and thereby concludes that the original decision to cancel her entitlement had been correct, it cannot then go on to consider whether she could have become re-qualified for the DSP at some later date. That question is not the subject of review that has been brought by the present application.
16. I now turn to the second question. It has been said in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 that section 43 of the Administrative Appeals TribunalAct1975 does not limit, by time or substance, the information or evidence the Tribunal may take into account in making its review decision. I note, however, the comment made by Kirby J at [44] that sometimes it may be inherent in the nature of a particular decision that review of that decision is confined to identified past events. Similarly Hayne and Heydon JJ at [101] said in relation to a review of a decision under the Migration Act 1958 (Cth):
Unlike some legislation providing for pension entitlements, in which the critical statutory question is whether a criterion was met or not met at a particular date, such as the date of cancellation of entitlements, the provisions of s 303 of the Migration Act contained no temporal element.
17. The Tribunal therefore accept the Respondent’s contention that it should not take into account the report from Dr Ellis and the hospital records dated 1998 which were supplied after the hearing by Ms Brown. Ms Brown was in receipt of the DSP when these records and report were completed, and they do not provide any relevant information on her condition as at the date of cancellation of her DSP.
18. In order to determine whether she had been eligible on the relevant date to continue receiving the DSP, the Tribunal will examine whether the following criteria was met on the relevant date, as required by section 94 of the Act:
·Whether Ms Brown’s medical conditions and the resulting impairments were fully diagnosed, treated and stabilised and therefore considered permanent under the Act;
·Whether her impairments could be assigned an impairment rating of at least 20 points under the Impairment Tables; and
·If so, whether she had a continuing inability to work (‘CITW’) due to these conditions.
The Law
19. Section 94(1) of the Act provides:
(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;
…
“impairment… of 20 points or more under the Impairment Tables”
20. The Impairment Tables are contained in Schedule 1B of the Act. The Introduction to the Impairment Tables relevantly provides:
…
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. … A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the assessor should:
evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment.
…
21. A Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension provides further clarification of the concept of “permanent impairment”. It provides that a permanent impairment rating can only be assigned where, according to the available medical evidence:
(i)the condition causing the impairment has been fully diagnosed, treated and stabilised; and
(ii)it is considered that the condition and the resulting impairment will persist for at least two years.
22. It then goes on to explain the acceptable standards of diagnosis, treatment and stabilisation. Generally, confirmation of a medical condition’s exact diagnosis must indicate the actual diagnosis of the condition causing the impairment. The condition and the impairment must have received all reasonable treatments, which exclude irregular, experimental or prohibitively expensive procedures; treatments with a poor success rate; or treatments with a good chance of success but involving serious associated risks or side effects. If the person has decided against proceeding with reasonable treatment that is likely to result in significant improvement, the impairment would not be considered stabilised unless there is a medical or other compelling reason for not undertaking treatment. Where, after an exact diagnosis has been confirmed and all reasonable treatments have been undertaken, medical evaluations still indicate that no significant functional improvement would occur for the next two years, then the condition and the resulting impairment will be regarded as fully stabilised for the purpose of assigning an impairment rating.
23. The Guide also emphases that the Tables are impairment (function)-based rather than condition (diagnosis)-based. The Guide provides that the term “impairment” under the Act is understood as the functional effects resulting from the condition. It is distinguished from the term “condition”, which refers to the disease or injury to which a medical diagnostic label has been applied. Multiple impairments could result from a single diagnosed condition and vice versa. Further, where a condition is considered permanent in the general sense of the word, its corresponding level of impairment may not necessarily be considered likewise “permanent”, because the assessment must depend on how the degree of the person’s functional ability improves within the next two years. In other words, a person may have a medical condition that is deemed permanent yet a temporary impairment at one time.
“continuing inability to work”
24. Under subsection 94(2) a person has a CITW as a result of an impairment if the Respondent is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next two years; and
(b) 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.
25. A person is considered as doing work “independently of a program of support”, if under subsection 94(4) the Respondent is satisfied that to do the work the person:
(a) is unlikely to need a program of support that:
(i) is designed to assist the person to prepare for, find or maintain work; and
(ii) is funded (wholly or partly) by the Commonwealth or is of a type that the Respondent considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or
(b) is likely to need such a program of support provided occasionally; or
(c) is likely to need such a program of support that is not ongoing.
26. “Work” means work that is for at least 15 hours per week at award wages or above which exists anywhere in Australia: subsection 94(5).
Consideration
27. Ms Brown’s identified medical conditions were low back pain, hypertension, cirrhosis of the liver due to hepatitis C, rheumatoid arthritis, anxiety/depression and insomnia. The Respondent accepted that on the relevant date, Ms Brown had ‘physical, intellectual or psychiatric impairment’ as required by subsection 94(1)(a) of the Act as a result of these conditions.
28. The respondent conceded that as at the relevant date Ms Brown’s condition of low back pain was considered permanent. Yet it was contended that on the weight of the medical evidence, this condition attracted a total impairment rating of less than 20 points. Apart from the low back pain, it was contended that Ms Brown’s other conditions were not awarded any impairment ratings as they had not been fully diagnosed, treated or stabilised as at the relevant date.
29. The Tribunal will assess each of Ms Brown’s medical conditions based on the available evidence, in order to determine whether an impairment rating of 20 points under the Impairment Tables could be assigned to Ms Brown’s impairment(s) resulting from a condition or a combination of multiple conditions.
Low back pain
30. Ms Brown said that she injured her back when she fell from her balcony in 1991. She referred to a report by Dr Ellis dated 20 May 1998, about 9 years before the date of cancellation of her original DSP. The Respondent contended that this report is not relevant to her current appeal and does not address her conditions as at the date of cancellation. The Tribunal accepts the Respondent’s contention on this point.
31. Dr Hillman in both his treating doctor’s reports diagnosed chronic low back pain and concluded that this condition would impact upon her ability to function for more than 24 months and was expected to fluctuate. Ms Brown claimed that Dr Hillman had told her that her back condition would require expensive surgery which was not guaranteed to succeed and could leave her wheelchair bound for life. In view of this prognosis Ms Brown indicated that she would rather suffer back pain with its attendant insomnia and arthritis for which she takes anti-pain tablets (Tramal). She claimed that Dr Hillman had increased her medication on 13 October 2008 because her condition had deteriorated.
32. Dr Gibson, an occupational physician, concluded in her medical report of 9 December 2007 that Ms Brown had fully diagnosed mechanical back pain and lumbar spondylosis. In response to a specific query from the SSAT regarding any possibility of further reasonable treatment that is likely to lead to a significant functional improvement within the next two years, Dr Gibson answered:
“Given the chronicity of the problem, its degenerative nature and the presence of an effective disorder it is unlikely further reasonable medical treatment is likely to lead to a significant functional improvement within the next two years.”
33. Dr Kumar in his treating doctor’s report of 18 January 2008 confirmed a multilevel lumbar disc bulge with the date of onset 10 April 1991, and diagnosed in 1996. Her treatment was Tramal and Alodom, and no additional treatment was proposed. Dr Kumar completed two further treating doctor’s reports dated 5 June 2009 and 26 August 2009 in which he confirmed the diagnosis of disc lesions in Ms Brown’s spine. For this condition she had been treated with Tramal and physiotherapy.
34. The respondent contended that these reports did not provide any additional information relevant to Ms Brown’s conditions on the date of cancellation. It was further contended that the 26 August 2009 report supported a view that Ms Brown’s back condition could not be considered permanent on that date as treatment was still planned for it.
35. The Tribunal concurs with the SSAT that the medical evidence referred to previously support its earlier decision that Ms Brown’s back condition was permanent as at the relevant date. However, the SSAT found that her functional tolerances were above those she claimed in her evidence. For that reason a 20 point impairment rating for her back condition was not warranted. The Tribunal will now consider whether the SSAT made the correct decision.
36. Impairments of the lower spine are assessed using the Impairment Table 5.2. The relevant ratings are assigned as follows:
TABLE 5.2 Thoraco--lumbar‑sacral spine
As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.
Rating Criteria
NIL Normal or nearly normal range of movement.
FIVE Loss of one‑quarter of normal range of movement.
TEN Loss of one‑quarter of normal range of movement as well as back
pain or referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.
or
Loss of half of normal range of movement.
TWENTY Loss of half of normal range of movement as well as back pain or
referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.
or
Loss of three‑quarters of normal range of movement.
37. Regarding her functional tolerances affected by her back condition, Ms Brown gave evidence to the Tribunal that she estimated that she could sit for a maximum of 30 minutes, and after that her back would feel stiff and there was referred pain.
38. The Tribunal notes that the SSAT’s decision regarding Ms Brown’s functional tolerances was based upon two job capacity assessment reports dated 20 August 2007 and 25 January 2008, which stated that on four occasions, Ms Brown had been able to travel by car the long distance between Sydney and Albury, apparently without excessive discomfort. Ms Brown submitted to the Tribunal that these journeys were not by choice, but were made for the purpose of visiting her son who had been seriously injured in a road accident near Albury. She had to attend him despite the physical pain and discomfort she was forced to endure through the duration of these long journeys, because it was an emergency situation.
39. The Tribunal accepted that Ms Brown’s trips to Albury, which were made under such an extraordinary circumstance, should be given less weight when assessing the level of her functional tolerance connected with her back condition.
40. The job capacity assessment reports also noted that Ms Brown was able to sit for 60 minutes but had difficulty walking up stairs. The Tribunal observed during the hearing that Ms Brown had to stand up every 20 minutes, but managed to sit through a 45 minute hearing. It accepted Ms Brown’s claim that she used her elbows to reduce pressure on her back to reduce the referred pain.
41. Ms Brown’s daughter, Ms Renée Brown, informed the Tribunal that her mother used to pick up her 8 and 12 year old children from school as she works day and night shifts. Her mother had walked her grandchildren to and from school, across a distance of less than 3-4 km. She helps clean her mother’s house by doing the heavier household chores like vacuuming and cutting lawns. She takes her mother shopping by car and pushes the shopping trolley when it is full. She stated that all the cupboards and amenities in her mother’s house were built higher than normal to reduce the need to bend down. She said that in her view, her mother is in constant pain and has not improved.
42. The Tribunal is satisfied that Ms Brown’s back pain condition has been fully diagnosed, treated and stabilised and therefore considered permanent. It noted that the SSAT having accepted that she had lost half the normal range of movement in her lower back, nevertheless concluded that her functional tolerances without back pain or referred pain were greater than she had estimated. On the basis of Ms Brown’s evidence to this Tribunal as well as the medical evidence from Drs Hillman and Gibson, the Tribunal found that the two job capacity assessment reports dated 20 August 2007 and 25 January 2008 did not accurately reflect Ms Brown’s actual pain threshold as described to the Tribunal. The Tribunal gave her the benefit of the doubt that she suffers referred pain with most physical activities and when sitting for more than 30 minutes. Consequently, the Tribunal found that she had a loss of half her normal range of movement (as assessed by the SSAT). In addition, she suffers back pain with most physical activities and with standing for about 15 minutes and with sitting or driving for about 30 minutes.
43. The Tribunal found that on the basis of Impairment Table 5.2 she should have a rating of 20 points for her back condition as it found that she had a loss of half the normal range of movement as well as back pain or referred pain with most physical activities and when sitting for more than 30 minutes.
Depression/anxiety
44. The Respondent contended that Ms Brown’s conditions of depression/anxiety could not be assigned an impairment rating as her condition had not been fully diagnosed, treated and stabilised.
45. Dr Kumar diagnosed depression/anxiety in his treating doctor’s report dated 18 January 2008. He stated that Ms Brown lacked motivation and that she was frustrated and worried all the time. He also indicated that Ms Brown had received medication in the past, but was not currently receiving treatment. He identified no further planned treatment. Dr Kumar noted her condition was likely to persist for over 24 months, but provided no opinion as to whether it was likely to improve, deteriorate or remain unchanged. In a later report dated 26 August 2009, Dr Kumar noted her previous suicide attempts in 1998 and indicated that the diagnosis of depression/anxiety was confirmed. He stated that Ms Brown was currently receiving medicinal treatment with Zoloft and that planned treatment would consist of continued medication. He predicted that the effect of this condition on Ms Brown’s functional ability is expected to fluctuate within the next two years.
46. Dr Gibson’s medical report of 9 December 2008 noted that Ms Brown had not recently had a psychiatric assessment or treatment. She noted that current treatment involved narcotic analgesics and visits to a GP. She noted that this management regime was symptomatic and unlikely to lead to significant functional improvement within the next two years, and that there were no additional treatments planned. She concluded that Ms Brown’s anxiety/depression could not be considered fully diagnosed, treated and stabilised.
47. Ms Brown claimed that she had not been asked to produce reports on her depression by a psychologist. The Respondent contended that the onus for obtaining appropriate medical reports rested with Ms Brown, and that she had not made them available to the assessor who could have taken it into account.
48. The Respondent pointed out that in the job capacity assessment report dated 20 Aug 2007, Ms Hilton noted that Ms Brown had not received treatment for her anxiety/depression condition and that she had declined intervention. Consequently the condition was considered as temporary. Ms Brown conceded that she had declined treatment because she had no confidence that it would work.
49. Ms Brown confirmed that she had stopped taking anti-depressants because of the side effects, mainly weight gain which affected her back condition. She claimed that while anti-depressants may have helped her sleep, the fundamental problem – her back condition – remained, causing her pain and subsequently depression. She claimed that Dr Kumar had provided no follow-up and had omitted to note that she had refused to take anti-depressants for these reasons.
50. In the job capacity report dated 24 January 2008, it is recorded that Ms Brown had received treatment with medication for her depression. Ms Brown claimed that she was suicidal during this period and had told Dr Kumar, who apparently dismissed her claim and didn’t include it in his report.
51. Ms Brown also referred to two records from the Nepean District Hospital relating to her attempted suicides. These had not been made available to the Centrelink assessors. She accepted that as Centrelink did not have this information, it could not be taken into account in its assessments.
52. On the basis of the available evidence, including references to Ms Brown’s serious episodes of depression and attempted suicides, the Tribunal considers that a confirmed diagnosis of depression may have been warranted as at the relevant date. Yet no evidence has been shown before the Tribunal indicating that Ms Brown had been receiving reasonable treatment in relation to that condition.
53. Further, Ms Brown has generally accepted that she refused to undergo suggested treatment for her depression, as she believed, understandably, that such treatments would not address the underlying problem of her back condition and would therefore prove futile. The Tribunal notes that even where a person has decided against proceeding with reasonable treatment that is likely to result in significant impairment, the impairment could still be considered stabilised if there is a medical or other compelling reason for not undertaking the treatment. However, in my view, Ms Brown’s reasons for refusing to undertake treatment for her depression could not be considered as “medical or other compelling reason”. Her principal reason being that she had no confidence that it would work. The Tribunal is not convinced that had she undertaken the treatment her condition may well have been stabilised.
54. As said earlier, it was indicated in Dr Kumar’s report dated 26 August 2009, that a continuing treatment with medication was being planned for her depression/anxiety, and that with the treatment, the impact of the condition on her functional ability would still persist, albeit fluctuating, within the next 3-24 months. This may suggest that her depression/anxiety had been treated and stabilised as at 26 August 2009, although further medical evidence from a psychologist or a psychiatrist may be necessary to confirm such a finding. However this report, completed almost 2 years since the date of cancellation, does not provide any information to the Tribunal as to how her condition was being managed or whether any improvement or deterioration was expected as at the date of cancellation.
55. The available evidence supports the finding that no reasonable treatment had been undertaken with regard to Ms Brown’s depression/anxiety as at the relevant date. The Tribunal therefore finds that Ms Brown’s depression/anxiety was correctly assessed as temporary as at the relevant date, and could not be assigned a rating under the Impairment Table 6.
Insomnia
56. Ms Brown claimed before the Tribunal that she believed her insomnia had been caused by the Tramal tablets she had been taking for treatment of her back pain. She also claimed that they should not have been taken because of her diagnosed liver problems. However, Dr Hillman in his treating doctor’s report dated 16 July 2007 listed insomnia as one of Ms Brown’s conditions. He indicated that the condition was being treated with Temaze and that significant improvement was not expected. In his second treating doctor’s report dated 9 October 2007, he reported that Ms Brown had been receiving the same treatment with Temaze, and indicated that significant improvement was expected.
57. The respondent contended that for insomnia to be considered fully stabilised there must be no improvement or deterioration over the next two years and that with optimal treatment, significant functional improvement was unlikely to occur within that period. I am satisfied on the basis of the available evidence that although diagnosed and treated, Ms Brown’s insomnia had not been fully stabilised as at the relevant date. The Tribunal finds that Ms Brown’s insomnia should be assessed as a temporary condition and should not be assigned a rating under the Impairment Tables as at the relevant date.
Hypertension
58. The SSAT noted that this condition was generally controlled with medication and that improvement in Ms Brown’s condition was expected. The respondent contended that the available evidence demonstrated that Ms Brown’s hypertension had not been stabilised.
59. Dr Hillman in his treating doctor’s reports dated 16 July 2007 and 9 October 2007 included hypertension as one of Ms Brown’s diagnosed conditions, and indicated that it was being treated with Coversyl. He stated that significant improvement was expected, and did not identify any possible impact from the hypertension condition on Ms Brown’s functional ability.
60. In a letter dated 12 November 2008 Ms Brown submitted to the Tribunal, as evidence of blood pressure, an attached prescription from Dr Hillman dated 13 October 2008 for Coversyl Tablets. Ms Brown questioned how her condition could be described as improving when her medication had been increased.
61. Dr Kumar in his report dated 26 August 2009 also referred to Ms Brown’s hypertension but noted that significant improvement was expected and did not identify any impact on her ability to function.
62. On the basis of the available evidence, the Tribunal accepts the SSAT’s finding that Ms Brown’s hypertension condition was generally being controlled with medication and improvement was expected as at the relevant date. The Tribunal finds that Ms Brown’s hypertension should be accorded a nil impairment rating under Impairment Table 20.
Hepatitis C
63. Ms Brown agreed that although this condition was a concern to her, it was not causing her additional problems. She was taking between 50/100 Panadene tablets every seven to ten days for treatment. Prior to 2006, Ms Brown had her gallbladder removed and liver damage was discovered by biopsy.
64. Dr Hillman in his report dated 9 October 2007 diagnosed Hepatitis C as one of Ms Brown’s conditions. He was of the opinion that significant improvement could be expected. Ms Brown had had normal liver function tests.
65. The SSAT assigned a nil rating under Table 20 on the grounds that Ms Brown had experienced minimal symptoms from this condition and it had had no appreciable effect on her ability to work.
66. The Tribunal has relied upon Dr Hillman’s report of 9 October 2007 in finding that Ms Brown’s Hepatitis C condition has not been stabilised and cannot be assigned an impairment rating. Furthermore, there is no evidence that Ms Brown suffers any impairment as a result of this condition.
Rheumatoid Arthritis
67. Dr Kumar referred to this condition in his report dated 18 January 2008 and noted that no treatment was being given. His assessment was that the condition was in remission. He did not comment on whether significant improvement was expected or whether it had any impact on Ms Brown’s functionality. Dr Kumar did not refer to this condition in his later report of 26 August 2009.
68. Ms Brown claimed that she disagreed with Dr Kumar’s assessment and that of Dr Moss who had noted her arthritic condition was temporary. Prior to Dr Kumar, she had received treatment from a Dr Johnson who had given her cortisone injections. Ms Brown claimed that Dr Kumar was not aware of this treatment because she hadn’t told him. The Tribunal received no further evidence on Dr Johnson’s treatment.
69. On the basis of the available evidence the Tribunal is not satisfied that Ms Brown’s rheumatoid arthritis has been fully treated and stabilised as at the relevant date. Consequently, it cannot be given an impairment rating.
Did Ms Brown have a CITW?
70. As the Tribunal has found that Ms Brown did have a rating of 20 points under the Impairment Tables, it must consider whether she had a CITW at the relevant date. In doing so it must be satisfied that Ms Brown cannot work within the next two years. Relevant sections of the Act are subsections 94(2), (4) and (5).
71. The Tribunal has taken note that the definition of “continuing inability to work” was modified by the Social Security Legislation Amendment Bill (No 1) 1995. The Explanatory Memorandum to the Bill emphasised that “the Respondent must be satisfied that a person’s continuing inability to work is directly caused by a person’s impairment that has been assigned a rating of 20% or more under paragraph 94(1)(b). Conversely, factors that are consequential upon the person’s impairment, such as attitude and lack of motivation to work are not to be taken into account in determining a person’s continuing inability to work under subsection 94(2): Respondent, Department of Social Security v Pusnjak (1999) 56 ALD 444, 452.
72. The Tribunal in Re Sergeant and Respondent Department of Family and Community Services [2005] AATA 1076 (at 181-120) recognised the different approaches taken by medical practitioners and work capacity assessors and preferred the evidence of the latter as to the applicant’s capacity to work or undertake training. A similar approach was taken in Re Muir and Respondent Department of Employment and Workplace Relations [2005] AATA 902. The Tribunal accepts that having concluded that Ms Brown has an impairment rating of 20 points then only the conditions for which her rating was granted can be used to determine whether or not she has a CITW.
73. The respondent contended that the evidence did not support a finding that Ms Brown was prevented from doing “any work” within a period of two years from 9 October 2007. Further, if she has the 20 points level of impairment that was not of itself sufficient to prevent her from undertaking a training program during that two year period, nor was such training unlikely, because of her impairment, to enable her to do any work independently of a program of support.
74. Ms Brown gave evidence to the SSAT and to this Tribunal that she was capable of doing light household cleaning, light laundry and cooking but had difficulty doing vacuuming, making beds, cleaning bathrooms or gardening, sitting for extended periods and doing anything which involved her having to bend down because of her back pain. Furthermore, the Tribunal gave weight to Ms Brown’s evidence, supported by that of her daughter, that light chores were possible only because the cupboards in her house had been raised above normal height and the clothes line were reduced in height so that she didn’t have to stretch. In addition, she gave evidence that she cannot bend and must kneel to pick things up. Apart from the length of time that Ms Brown claimed that she could sit in one place without discomfort, these claims were not contested by the respondent.
75. The respondent contended that Ms Brown was able to travel by car the six hours between Sydney and Albury with only four stops and that she could sit for longer than her claimed 20 minutes before feeling pain. The Tribunal has not given weight to these contentions, because in her evidence to the Tribunal, Ms Brown claimed that she was indeed in pain throughout the long journey to Albury and return, but because of her son’s serious car accident, she had no choice. The Tribunal gave Ms Brown’s claims greater weight.
76. In view of Ms Brown’s claims regarding her back condition and Dr Hillman’s medical assessments and in particular Dr Gibson’s report dated 9 December 2007 which stated “[g]iven the chronicity of the problem, its regenerative nature and the presence of an effective disorder it is unlikely further reasonable medical treatment is likely to lead to a significant functional improvement within the next two years”, the Tribunal does not support Ms Hilton’s conclusions in her job capacity assessment report dated 20 August 2007 which recommended that Ms Brown could be trained to work 23-29 hours within the next two years as an office cleaner or retail assistant. The Tribunal noted that within three months, Ms Chambers’ in her job capacity assessment report dated 13 November 2007,recommended that Ms Brown could work only 15-22 hours within the next 2 years in customer service or as a library assistant. By 25 January 2008 Ms Hinton had concluded, like Ms Chambers, that Ms Brown’s future capacity for work with intervention had been reduced to 15-22 hours, significantly below her recommendation made only seven months earlier. She suggested that Ms Brown could do light less skilled work such as retail assistance, console operator and data entry.
77. While the Tribunal noted Ms Brown’s willingness to receive computer training, it also gave weight to her claim that because of her back condition and the extreme limitations which it placed upon her ability to do work except possibly from her home, she would find it very difficult to hold down any of the jobs suggested by the assessors.
78. In view of Ms Brown’s health the Tribunal has applied subsection 94(2) of the Act which states that person has a CITW as a result of an impairment if the Respondent is satisfied that:
……….(b) (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 two years.
CONCLUSION
79. The Tribunal was satisfied that as at the relevant date, notwithstanding that Ms Brown’s back condition was her only assessable impairment, it should have been accorded 20 points under the Impairment Tables. Ms Brown’s back pain condition was correctly diagnosed, treated and stabilised and thus considered to be a permanent impairment under the Act.
80. The Tribunal does not find that Ms Brown’s depression/anxiety, insomnia, hypertension, hepatitis C and rheumatoid arthritis have resulted in permanent impairments as at the relevant date. Accordingly, with respect to these conditions, the Tribunal cannot assign an impairment rating, or assigns a nil rating, under the relevant Tables.
81. The Tribunal found that Ms Brown’s continuing inability to work is directly caused by her back condition, and that, while it may not prevent her from undertaking a training activity, such activity is unlikely to enable her to do any work independently of a program of support within the next two years under Section 94(2) of the Act. Consequently, she has a CITW.
82. The Tribunal sets aside the decision under review.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D M Connolly AM, Member
Signed: ......[sgd]............................................................
AssociateDate of Hearing 23 June 2009
Date of Decision 26 March 2010
Solicitor for the Applicant Self-represented
Solicitor for the Respondent Ms R Prasad, Centrelink Advocacy Branch
0
5
0