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

[2015] AATA 933

Nelson and Secretary, Department of Social Services (Social services second review) [2015] AATA  933 (3 December 2015)

Division	GENERAL DIVISION
File Number	2015/0917
Re	Janice Nelson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	3 December 2015
Place	Perth

The decision under review is affirmed.

…….(Sgd) A C Cotter........................

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – whether conditions are fully diagnosed, treated and stabilised – value of medical evidence – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

CASES

Summers and Secretary, Department of Social Services [2014] AATA 165

SECONDARY MATERIALS

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

Guide to Social Security Law 3.6.3.05(E)

REASONS FOR DECISION

Senior Member A C Cotter

3 December 2015

1. Ms Janice Nelson lodged a claim for Disability Support Pension (“DSP”) on 26 March 2014. Her claim form listed her disabilities as “Foot bone disease Charcot left foot, 2 toes amputated on right foot”.[1]

   [1] Exhibit 1, T Documents, T 6, page 29. Ms Nelson’s claim form dated 25 March 2014.

2. A medical report prepared by Dr Matthew Skinner of the Department of General Medicine at the Sir Charles Gairdner Hospital (“SCGH”) described her disability as “diabetic foot infection in Charcot joint” and noted that past treatment included amputation and antibiotics.[2] He described Ms Nelson’s diabetes as a condition that was generally well managed and that caused minimal or limited impact on her ability to function.[3]

   [2] Exhibit 1, T Documents, T 7, pages 48-49. Medical report of Dr Matthew Skinner dated 29 March 2014.

   [3] Exhibit 1, T Documents, T 7, page 54. Medical report of Dr Matthew Skinner dated 29 March 2014.

3. Ms Nelson’s claim was also supported by a joint letter from Dr Rachele Humbert, Head of Department- Podiatry, SCGH and Dr Janine Robertson, Senior Podiatrist at SCGH.[4] They confirmed that Ms Nelson has long standing Type II diabetes, as a result of which she has peripheral neuropathy which causes a complete lack of sensation in her lower limbs. They confirmed that she had suffered Charcot’s neuroarthropathy and subsequent osteomyelitis in her right foot which resulted in the amputation of the first and second toes (which at that stage had not completely healed). They also noted that Ms Nelson suffered from Charcot’s neuropathy in her left ankle, which was then being treated by her wearing a cast. The long term prognosis would require reconstructive surgery or possibly, below knee amputation. That letter was attached to a further medical report in similar terms completed by Dr Vijay Panicker, also of SCGH.[5]

   [4] Exhibit 1, T Documents, T 4, page 13. Joint letter from Dr Rachele Humbert and Dr Janine Robertson dated 25 March 2014.

   [5] Exhibit 1, T Documents, T 8, pages 56-66. Medical report of Dr Vijay Panicker dated 1 May 2015.

4. Ms Nelson’s claim was rejected by the Department[6] on the basis that she did not have the required 20 points under the Impairment Tables. Reviews by both an Authorised Review Officer[7] and the then Social Security Appeals Tribunal (“SSAT”)[8] confirmed that rejection. Still dissatisfied with the result, Ms Nelson has sought a review of the SSAT’s decision by this Tribunal.

   [6] Exhibit 1, T Documents, T 10, page 73.

   [7] Exhibit 1, T Documents, T 15, page 89.

   [8] Exhibit 1, T Documents, T 2, page 3.

   THE LEGISLATIVE FRAMEWORK

5. Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the applicant has a physical, intellectual or psychiatric impairment; that the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work.

6. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 26 March 2014). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[9] Therefore, the relevant period for considering whether Ms Nelson qualified for DSP is between 26 March 2014 and 25 June 2014.

   [9] See ss 41 and 42, and cll 3 and s 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

7. The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (“Determination”), a legislative instrument made under the Act.[10] The Tables are function, rather than diagnostic, based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.

   [10] See s 26(1) of the Act.

8. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[11] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[12]

   [11] See s 6(3) of the Determination.

   [12] See s 6(4) of the Determination.

9. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following factors are to be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[13]

   [13] See s 6(5) of the Determination.

10. A condition is “fully stabilised” if:

    (a)either 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.[14]

    [14] See s 6(6) of the Determination.

11. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[15]

    [15] See s 6(7) of the Determination.

12. An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[16]

    [16] See s 11(1) of the Determination.

13. As regards the requirement that the applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied. Essentially, they are that the applicant must:

    (a) have actively participated in a program of support (if he or she does not have a “severe impairment” as defined in s 94(3B)); and

    (b)be unable to work for at least 15 hours per week independently of a program of support; and

    (c)be unable to participate in a training activity, or if the impairment does not prevent the applicant from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him or her to do any work independently of a program of support within the next two years.

    ISSUES FOR THE TRIBUNAL

14. It is not in dispute that Ms Nelson has a number of physical impairments in relation to Charcot’s neuropathy in the left foot, a partial amputation of the right foot, and diabetes.[17] Therefore, the first requirement under s 94(1) of the Act is satisfied.

    [17] See Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions dated 26 June 2015, paragraph [16].

15. Consequently, the remaining issues to be determined by me are:

    (a)Whether Ms Nelson’s impairments could, at the relevant time, be assigned 20 points or more under the Impairment Tables; and

    (b)       If so, whether, at the relevant time, Ms Nelson had a continuing inability to work?

    CONSIDERATION

    Can Ms Nelson’s impairments attract 20 points or more under the Tables?

16. I deal with this question by reference to the conditions identified earlier.

    Charcot’s neuropathy – left foot

17. Although a doubt was originally expressed by the initial Job Capacity assessor in August 2014,[18] it is now generally accepted that this condition is fully diagnosed, treated and stabilised. After receiving a report from Dr Nathan Donovan of the Orthopaedics Department of SCGH,[19] a later Job Capacity assessor concluded in December 2014 that the condition was fully diagnosed, treated and stabilised and recommended that it be assigned 10 impairment points.[20] The Authorised Review Officer[21] and the SSAT[22] also accepted that it was fully diagnosed, treated and stabilised and that 10 points could be assigned under the Tables.

    [18] Exhibit 1, T Documents, T 9, pages 67-72. Job Capacity Assessment report dated 11 August 2014.

    [19] Exhibit 1, T Documents, T 11, page 75. Report of Dr Nathan Donovan dated 28 October 2014.

    [20] Exhibit 1, T Documents, T 12, page 77. Job Capacity Assessment report dated 8 December 2014.

    [21] Exhibit 1, T Documents, T 15, pages 85-89. Authorised Review Officer’s letter dated 18 December 2014.

    [22] Exhibit 1, T documents, T 2, pages 3-9. SSAT Decision and Reasons for Decision dated 20 February 2015.

18. The Secretary likewise conceded that the condition is fully diagnosed, treated and stabilised.[23] Having considered the relevant medical reports, I believe that concession was appropriate. The question therefore is how many points should be assigned under the appropriate table, Table 3 (Lower Limb Function).

    [23] See Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions dated 26 June 2015, paragraph [40].

19. The best available evidence of the functional impact of this condition is Ms Nelson’s evidence to the SSAT and what she told me at the hearing. She told the SSAT the following:

    (a)She can walk without a stick on level ground, but very slowly and with frequent breaks; sloping surfaces are difficult and stairs are almost impossible.

    (b)She lives alone in her own house, which is quite large (her three children having grown up there). Her family helps with heavy housework and some gardening. She can do some cooking but needs to rest after standing for more than 10 minutes.

    (c)She is able to drive, but had to switch to an automatic car so only her right foot is needed. She has some difficulty getting in and out of the car, but manages to drive reasonably well (at the time of the SSAT hearing, she had recently managed a three hour drive with a couple of breaks).

    (d)She goes shopping when up to it and gets around with the support of a shopping trolley, but it is a very slow process.[24]

    [24] Exhibit 1, T Documents, T 2, page 8. SSAT’s Decision and Reasons for Decision dated 20 February 2015, paragraph [35].

20. Having regard to those matters, I believe that Ms Nelson at least satisfies the descriptors for moderate impairment (10 points) under the table.

21. In order for Ms Nelson to be assessed as having a severe functional impact (attracting 20 points), it is necessary for her to meet all the descriptors for it, including being unable to walk around a shopping centre or supermarket without assistance; being unable to walk from the carpark into a shopping centre without assistance; and being unable to stand from a sitting position without assistance.  In the context of that table, “assistance” means assistance from another person and not from aids, equipment or assistive technology that the person has or normally uses.[25]

    [25] See Guide to Social Security Law at 3.6.3.05(E) and Summers and Secretary, Department of Social Services [2014] AATA 165, paragraph [16].

22. At the hearing, Ms Nelson told me that she cannot walk any distance, nor can she work, swim, play sport or garden, all of which she did previously. As regards shopping, she said that while she did not need to have anyone assist her, she found the task of walking around the supermarket painful and slow. As mentioned earlier, she uses a shopping trolley to lean on. However, she finds it difficult to bend to get things on the lower shelves. She has a disabled permit for her car, but designated spots are few in number. If a trolley is handy, she will use it to lean on as she goes into the shopping centre or supermarket. If one is not available, she manages to walk in herself, without assistance from anyone or without either a walking stick or other aid; again, it is a long and slow process. Ms Nelson needs to hold on to the edge of her chair or a table when she stands up, and needs to adjust her balance before she does so. She does not use public transport much. She does not live near a train line and it is difficult to use a bus as sometimes the driver does not lower the ramp to assist her to get on; the steps are difficult to negotiate.

23. In light of what she told me, it seems that Ms Nelson is able to do most of the tasks described in the descriptors for severe functional impact without assistance from another person (although she does so slower or with rests, and is in pain).  I therefore do not think that she meets the criteria for severe functional impact. Accordingly, I consider that 10 points should be assigned for this impairment.

    Partial amputation (right foot)

24. The first and second toes of Ms Nelson’s right foot were amputated in January 2014. The joint letter from Dr Humbert and Dr Robertson in March of that year stated that the amputation had not yet completely healed and would require specialised care and footwear on an ongoing basis.[26] Similarly, Dr Panicker thought at the time that the wound would require weekly care.[27]

    [26] See Exhibit 1, T Documents, T 4, page 13. Letter Dr R Humbert and Dr J Robertson dated 25 March 2014.

    [27] See Exhibit 1, T documents, T 8, page 62. Medical report Dr V Panicker dated 1 May 2014.

25. However, almost a year after the surgery, there was still uncertainty as to what further treatment needed to be provided. The joint report of Dr Humbert and Dr Tamsin Keevil (also of SCGH) dated 13 January 2015 noted that Ms Nelson at that stage had two “chronic wounds on her right foot due to the deformity and pressure”. Both were considered to be at a high risk of infection and could require amputation in the future.[28] 

    [28] Exhibit 2(c). Letter from Dr R Humbert and Dr T Keevil dated 13 January 2015.

26. The Job Capacity Assessment report of August 2014 noted that there appeared to be complications with the wound healing, which was likely to compound Ms Nelson’s mobility. It noted that further treatment was required and that there was potential for some improvement in her ability to function. As a result, the condition was not considered to be fully treated and stabilised.[29] The Job Capacity Assessment report in December did not change that assessment, as there was no further evidence.[30]

    [29] See Exhibit 1, T documents, T 9, page 69. Job Capacity Assessment report dated 11 August 2014.

    [30] See Exhibit 1, T documents, T 12, pages 77-78. Job Capacity Assessment report dated 8 December 2014.

27. In the absence of further evidence, it is difficult to conclude that this condition was fully treated and stabilised at the relevant time. As a consequence, I do not think any impairment points can be assigned in respect of that impairment.

28. Even if points could be assigned, it would be under Table 3. However, Ms Nelson’s impairment of her lower limb function has already been assessed under that Table. She told the SSAT that the problems with both feet affected her mobility significantly.[31] She told me that, apart from having to switch to an automatic car, there was no difference between the feet conditions as regards their impact on her functional ability. In those circumstances, I am precluded from assigning separate points to a combined or common impairment. To do so would be to “double count”, which is prevented by s 10 of the Determination:

    (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) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), 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.

    [31] Exhibit 1, T Documents, T 2, page 8. SSAT Decision and Reasons for Decision dated 17 February 2015, paragraph [35].

29. For that reason, only a single impairment rating of 10 points should be assigned under Table 3, even if points could be assigned in respect of this impairment.

    Diabetes

30. Although Ms Nelson was diagnosed with Type II diabetes in 2004,[32] there are no medical reports to corroborate any functional impairment arising from that condition, other than the lower limb functional impact discussed earlier.

    [32] Exhibit 2(c). Letter from Dr R Humbert and Dr T Keevil dated 13 January 2015.

31. In his report in support of the claim, Dr Skinner identified diabetes as a condition which was generally well managed and which caused limited or minimal functional impact.[33] That was consistent with what Ms Nelson told the SSAT, that she self-monitors her blood sugar level every morning and takes two different tablets on a daily basis. As to its impact, that tribunal reported what she said as follows:

    She self-monitors her blood sugar level every morning and takes two different tablets on a daily basis. Her blood sugar levels are good and the doctors are happy that the diabetes is well controlled. She has regular eye checks and, apart from needing glasses for close work, her eyesight is fine. She has seen a vascular surgeon and been told her circulation is fine.

    Apart from the diabetic complications affecting her feet, she is not aware of any other problems directly related to her diabetes.[34]

    [33] Exhibit 1, T Documents, T 7, page 54. Medical report of Dr M Skinner dated 29 March 2014.

    [34] Exhibit 1, T Documents, T 2, page 7. SSAT’s Decision and Reasons for Decision dated 17 February 2015, paragraph [33].

32. At the hearing, Ms Nelson also confirmed to me that her diabetes is controlled by a combination of diet and tablets.

33. In light of those reports and observations, I believe that her diabetes attracts an impairment rating of zero.

    Summary

34. To summarise, I consider that 10 impairment points can be assigned to the Charcot condition in Ms Nelson’s left foot. The condition concerning the right foot was not fully treated and fully stabilised at the relevant time, such that no rating could be assigned in respect of it. In any event, I consider that Ms Nelson would be precluded from counting the lower limb functional impact twice in respect of each foot condition. The diabetes has minimal impact on Ms Nelson’s ability to function and therefore attracts no points. Therefore, at the relevant time, I do not believe that Ms Nelson could be assigned more than a maximum of 10 impairment points. Because she does not have 20 impairment points or more, I do not believe that Ms Nelson was qualified for DSP at the relevant time.

    Continuing inability to work?

1. In view of my finding that Ms Nelson does not have 20 points or more under the Tables, it is not necessary for me to consider the remaining issues concerning her inability to work.

   CONCLUSION

2. I do not consider that Ms Nelson qualified for the DSP at the relevant time, as she did not have 20 points or more under the Impairment Tables.

3. Accordingly, the decision under review is affirmed.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter,

....(Sgd) A Tran....................................................................

Associate

Dated  3 December 2015

Date of hearing	22 October 2015
Applicant	In person
Solicitors for the Respondent	Australian Government Solicitor