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

[2017] AATA 475

Muranovic and Secretary, Department of Social Services (Social services second review) [2017] AATA 475 (21 March 2017)

Division:GENERAL DIVISION

File Number(s):  2016/2255

Re:Cimeta Muranovic

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:21 March 2017

Date of written reasons:        13 April 2017

Place:Brisbane

I affirm the decision under review.

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Deputy President Dr P McDermott RFD

CATCHWORDS

SOCIAL SECURITY – disability support pension – physical and psychiatric impairments – whether applicant’s conditions are permanent – whether applicant’s impairment is of 20 points or more under the Impairment Tables – whether applicant has a continuing inability to work – decision affirmed under review

LEGISLATION

Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) s 80

SECONDARY MATERIALS

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

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

13 April 2017

INTRODUCTION

1. The applicant seeks a review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal that was given on 22 March 2016.

2. That decision affirmed a previous decision of the Department to cancel the applicant’s disability support pension from 7 August 2015.

   BACKGROUND

3. In 1999, the applicant was granted disability support pension (DSP) because of her spinal condition.

4. The applicant originates from Bosnia and has visited Bosnia a number of times.

5. The applicant made enquiries in early 2015 with Centrelink about going overseas for longer than the maximum portability period. The applicant advised the Tribunal in giving evidence that she wished to be paid her pension when she was overseas for periods of up to two to three months to spend time with her family.

6. She was advised in a letter of the 22 April 2015 that she had agreed to undergo an assessment to determine whether she can be paid disability support pension. She was advised that a medical review of her disability support qualification was necessary in order to process the unlimited portability request, and the review would apply the Impairment Tables as at 1 January 2012. The letter stated that in applying the Impairment Tables, it may mean that she no longer qualifies for disability support pension. Further, she was advised that if she no longer wished to undergo the assessment, there was no need to return the medical review forms.

7. The applicant continued her application for unlimited portability and so was subject to a medical review. In support of her application for unlimited portability, the applicant submitted a report from Dr Watson dated 11 June 2015. Dr Watson stated that the applicant suffers from spondylolisthesis at L3/L4, partial sacralisation of the L5 vertebra, from pain which limits her mobility and experiences symptoms of pain in the lumbar spine. Dr Watson also said that she does experience some limitation of movement when sitting, standing or walking over prolonged distances. That report does not mention any pain in her leg although there were some previous reports indicating lower extremity pain some time ago.

8. After that report was received by Centrelink, the Department arranged for a face to face job capacity assessment. That assessment was undertaken by a registered psychologist as well as a physiotherapist who was the contributing assessor. The assessors concluded there was a moderate functional impact on activities involving spinal function.

9. It was recorded that the client is able to sit in or drive a car for thirty minutes. She then indicated she will shortly travel to Bosnia, approximately a 22 hour flight, and that she is able to hang out the clothing overhead, however she may have difficulties doing this all the time. The assessors considered that the applicant was unable to bend forward to pick up a light object placed at knee height. It was recorded that the client stated she would have difficulty picking up things from the floor and knee height. However, she could pick up a grocery bag from a trolley full of items, such as toilet paper, and put this bag into the car. The report records that the applicant remarked she can generally perform overhead activities, that she can turn her head without moving her trunk, bend forward to pick up an item from a desk and can remain seated for over 10 minutes.

10. The job capacity assessment report also recorded that the treating doctor indicates that she does experience pain that can limit her mobility and that she has limitation of movement when sitting, standing and walking over long distances. The assessors came to the conclusion that the spinal condition should be rated 10 points under Table 4 of the Impairment Tables. The assessor also concluded that the baseline and future work capacity of the applicant within the next two years was 15-22 hours per week. On 7 August 2015, a decision was made to cancel the applicant’s DSP.

11. After that decision, Dr Watson submitted a medical report dated 19 October 2015. He said that she had degenerative lumbar spondylolisthesis and he referred to the recent MRI with evidence of degenerative lumbar spondylolisthesis. Dr Watson stated “that the lady has not worked for 16 years and has subjective symptoms… she recently went on holiday to Bosnia and does not appear to have required treatment while away.”

12. On 30 October 2015, an authorised review officer (the ARO) affirmed the decision to cancel DSP.[1]

    [1] Exhibit A, T-documents, T26, at pp. 135-140.

13. There is a further medical report in evidence from the applicant’s general practitioner Dr Deed dated 12 November 2015. Dr Deed indicated that the applicant has a severe bilateral carpal tunnel compression condition; his report indicated that he was then unsure of the date of onset of the condition. None of the previous medical reports record the date of onset of this condition and the applicant confirmed in the hearing that the condition arose about November 2015. Dr Deed mentioned in that report that the applicant needed to be referred to a neurologist.

14. On 3 December 2015, Dr Whittington completed a report which stated that the applicant gave a convincing account of post-traumatic stress disorder (PTSD). He commenced the applicant on ‘Cymbalta’ medication at 30mg increasing to 60mg after one week. He also prescribed the applicant ‘Oxazepam’ to take as needed. Dr Whittington was optimistic that with the right combination of medicine the applicant might be able to improve pain tolerance, symptoms of PTSD and sleep disturbance.

    RELEVANT LEGISLATION

15. The legislation I must administer is the Social Security Act 1991 (the SSA), the Social Security Administration Act 1999 (the SSAA) and the Social Security Tables for the assessment of work-related impairment for disability support pension Determination 2011 (the Determination).

16. Under section 80 of the SSAA, the Secretary is required to cancel or suspend a social security payment where the Secretary is satisfied that a person is not qualified for the payment.

17. Section 94 of the SSA prescribes the qualification criteria for disability support pension.[2]

    [2] Exhibit A, T-documents, T4 at p. 16.

18. Section 94(1) of the SSA provides that a person qualifies for DSP if the person has a physical, intellectual or psychiatric impairment, the person’s impairment is 20 points or more under the Impairment Tables and the person has a continuing inability to work.

19. The relevant Impairment Tables which were in force at the time of cancellation of DSP are in evidence.[3] At the hearing it was explained that these Tables are different from when the applicant was first granted DSP. Under section 5 of the Determination[4] the Tables are defined as function based rather than diagnosis based. The Department had fairly advised the applicant that a review under these Tables could mean that she no longer qualifies for DSP.

    [3] Exhibit A, T-documents, T4 at pp. 30-53.

    [4] Exhibit A, T-documents, T4 at pp. 34.

20. In assigning an impairment rating to a condition, I am required to apply the rules in section 6 of the Determination.[5] A condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, the condition has been fully treated and the condition has been fully stabilised and the condition is more likely than not, in light of the available evidence, to persist for more than two years.

    [5] Exhibit A, T-documents, T4 at pp. 35.

21. I will now proceed to consider the requirements under section 94 of the SSA which appears at page 16 of the T-documents.

    CONSIDERATION

22. Section 94(1)(a) of the SSA imposes a requirement that a person has a physical, intellectual or psychiatric impairment. I am satisfied that the applicant meets the requirements under section 94(1)(a) because Dr Watson in his report of 11 June 2015 has reported on the spinal condition which I accept is an impairment.

23. I now consider section 94(1)(b) of the SSA. That provision requires me to consider whether a person’s impairment is 20 points or more under the Impairment Tables. I accept the submission of the respondent that the spinal condition is a permanent condition. The applicant before the AAT first tier review explained the effect of the spinal condition as follows:

    (a)she can walk around a supermarket but tries to be as quick as possible

    (b)she is able to walk from the carpark to the shopping centre

    (c)she can use stairs without assistance

    (d)she can stand up without assistance by using the arms of a chair

    (e)she can sometimes stand for half an hour but not in the one spot

    (f)she can tolerate sitting for more than 40 minutes

    (g)she can bend to coffee table height or pick up something light off a bench

    (h)she can turn her head to each side and bend her neck

    (i)she can usually reach up to get something out of the kitchen cupboard if it is light.

24. She also outlined to the AAT first tier review that she was having difficulty with carpal tunnel syndrome and is awaiting surgery and had started seeing a psychiatrist, Dr Whittington, in November 2015.

25. The AAT first tier review decided that properly rated she should be awarded 10 points under Table 4 of the Impairment Tables. The applicant informed the job capacity assessor that she could sit in or drive a car for 30 minutes and she informed the AAT first tier review that she could tolerate sitting for more than 40 minutes. The evidence before me is that the applicant satisfies descriptor (a) in not being able to sustain overhead activities even though she can usually reach up to get something out of a cupboard if it is light. I agree with the assessment of the AAT first review.

26. There is no evidence before me which is cogent and supported by medical evidence, which would enable me to award 20 points under Table 4 for the spinal condition. The applicant informed the AAT first review that she is able to perform the activities mentioned in descriptors (a), (b), (c) and (d). There is no recent medical evidence concerning range of movement of the applicant.

27. The carpal tunnel syndrome was not fully diagnosed, treated and stabilised at the time of the cancellation, 7 August 2015. During the hearing I indicated to the applicant that there was no evidence that the condition was diagnosed before 12 November 2015. The applicant confirmed that the condition arose in November 2015 and stated she is awaiting surgery for the condition. Because the condition was not fully diagnosed and treated at the time of cancellation, I do not have authority to assign a rating under the Impairment Tables for the carpal tunnel syndrome condition.

28. The applicant informed the AAT first tier review that she gets pain in her right leg and when it gets really bad it is numb from the knee down. The applicant also stated this in the hearing.

29. There are no medical reports which confirm that this condition was in existence at the time of cancellation of DSP. The medical report of the specialist Dr Watson dated 11 June 2015 states that the patient experiences symptoms of pain in the lumbar spine. There is no mention in that report of pain in the applicant’s right leg. The Introduction to Table 3 relating to lower limb function states: “self-report of symptoms alone is insufficient”.[6]

    [6] Exhibit A, T-documents, T4 at p. 43.

30. This means that I do not have authority under the Determination to act on the uncorroborated report of the applicant that she suffers from pain and numbness in the right leg. Corroborating evidence of the lower limb function can be provided in a report from a person’s treating doctor or a report from a medical specialist. In this case, the orthopaedic surgeon who has referred to the subjective symptoms of the applicant has made no reference to that condition.

31. I have taken a different view of the Secretary as to the lower limb condition. The Secretary states that I should assign an impairment rating of 0 points under Table 3. I have taken the view that I do not have authority to assign an impairment rating under Table 3 because the lower limb condition is not fully diagnosed.

32. The other condition that I must consider is the mental health condition of the applicant. Dr Whittington in his report of 3 December 2015 has stated that the applicant has given a convincing account of PTSD and stated that he commenced treatment on the date of the report. At the date of cancellation, the condition had not been fully treated in accordance with section 6 of the Determination.[7] As outlined in my reasons above, I therefore do not have authority to assign an impairment rating to a condition that has not been fully treated.

    [7] Exhibit A, T-documents, T4 at p. 35.

33. One matter that must be stressed in considering the mental health condition is that I must consider the position as at the date of cancellation of the DSP on 7 August 2015. In Dr Whittington’s letter of 19 April 2016, there is a reference to the treatment of the applicant that she cannot be determined as having a permanent psychiatric illness on the basis of not being fully treated.[8] Dr Whittington does not question the assessment in the review letter of 22 March 2016, he considered that there should be a review of eligibility towards the end of 2016 when she had received 12 months of treatment and received an optimal outcome. The applicant cannot be determined as having a permanent psychiatric illness on the basis of it not being fully treated at the date of cancellation. I cannot assign an impairment rating for the mental health condition.

    [8] Exhibit A, T-documents, T32 at p. 152.

34. My conclusion is that the applicant does not satisfy section 94(1)(b) of the Act which requires an applicant to have 20 points for their impairments. The applicant has 10 points for the impairments as they existed at the time of cancellation. The Secretary has quite properly pointed out that the applicant may be able to submit a further claim for DSP.

    DECISION

35. I affirm the decision under review.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated: 13 April 2017

Date(s) of hearing:	21 March 2017
Applicant:	By phone
Advocate for the Respondent:	Department of Human Services