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

[2015] AATA 619

Nielsen and Secretary, Department of Social Services (Social services second review) [2015] AATA 619 (21 August 2015)

Division	GENERAL DIVISION
File Number	2015/0830
Re	Noeleen Nielsen
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	21 August 2015
Place	Brisbane

The Tribunal affirms the decision under review

............................[Sgd].............................................

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 – value of medical evidence – evidence inconsistent or contradictory – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), ss 26, 27, 94
Social Security (Administration) Act 1999 (Cth), s 63, 80
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Guidelines to the Tables for the Assessment of Work-related Impairment

REASONS FOR DECISION

Senior Member A C Cotter

21 August 2015

INTRODUCTION

1. For some years, Noeleen Nielsen struggled with chronic pain while continuing to work. In March 2014, it finally became too much for her; the pain was so intense that she stopped work, resigning from her job as a chef.

2. Later that month, she made a claim for Disability Support Pension (“DSP”).[1] The supporting report, dated 26 March 2014, by her general practitioner, Dr Devika Jayawardena, described her condition as Osteoarthritis affecting both knee joints, both feet, the neck, the lower back and both hips. The treatment was noted as Panadol Osteo; there had been no referral to a specialist at that stage. The report described the impact on Ms Nielsen’s ability to function as affecting her movement and being unable to walk or stand for long periods. It confirmed that she had to resign from her job as a chef due to the pain she was experiencing. Other conditions noted by Dr Jayawardena, namely Gastro-oesophageal Reflux Disease and Diverticulosis, were listed as conditions that were generally well managed and that caused minimal or limited impact on Ms Nielsen’s ability to function.[2]

   [1] Exhibit 1, T Documents, T 12, pages 105-132.

   [2] Exhibit 1, T Documents, T 13, pages 133 -143.

3. Ms Nielsen’s claim was rejected on the basis that her impairments did not rate 20 points or more under the Impairment Tables. A review by an Authorised Review Officer in September 2014 affirmed that decision.[3] She sought a review of that decision by the Social Security Appeals Tribunal (“SSAT”).

   [3] Exhibit 1, T Documents, T 23, pages 170-173.

4. In the meantime, Ms Nielsen obtained further medical reports to support her claim. In particular, she was referred to a rheumatologist, Dr Mukhlesur Rahman, in October 2014 and consulted a clinical psychologist, Dr Bronwyn Watson, in September 2014. Dr Rahman considered that Ms Nielsen was suffering from Seronegative Arthropathy, likely of the psoriatic variety, and prescribed a new regime of different medications.[4]  After administering a number of tests, Dr Watson concluded that Ms Nielsen met the diagnostic criteria for Major Depression Disorder and Generalised Anxiety Disorder and that her symptoms were within the severe range.[5]

   [4] Exhibit 1, T Documents, T 26, pages 180-181.

   [5] Exhibit 1, T Documents, T 25, pages 178-179.

5. The additional reports of Dr Rahman and Dr Watson led Dr Jayawardena to submit a further medical report dated 16 December 2014, which identified Psoriatic Arthritis and Osteoarthritis, and Depression as conditions having a significant impact on Ms Nielsen’s ability to function.[6] It noted that the date of onset of the Psoriatic Arthritis was 31 October 2014 and that it was diagnosed on the same date. The date of onset of the Depression was shown as 17 July 2014, with the date of diagnosis being 1 October 2014.

   [6] Exhibit 3, Report of Dr Devika Jayawardena dated 16 December 2014.

6. Ms Nielsen’s hearing before the SSAT was on 16 January 2015. In light of Dr Rahman’s report, the SSAT found that her arthritic condition was not fully diagnosed at the time of claim. In particular, the Seronegative Arthropathy identified by Dr Rahman was considered not to be fully diagnosed, treated and stabilised at the date of claim, such that no impairment points could be assigned to the impairments arising from it. Nor did the SSAT consider that Ms Nielsen’s depressive disorder was fully diagnosed at the date of claim; therefore, no assessment of it could be made under the Impairment Tables. The SSAT therefore affirmed the decision to decline the claim.[7]  Dissatisfied with that decision, Ms Nielsen applied to this Tribunal for a review.

   [7] Exhibit 1, T Documents, T 2, pages 3-8.

7. Before considering the issues, it is important to highlight some of the key legislative provisions which are particularly relevant to this claim.

   THE LEGISLATIVE FRAMEWORK

8. 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

9. The Social Security (Administration ) Act 1999 (Cth) makes it clear that qualification for the DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 28 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.[8] Therefore, the relevant period for considering whether Ms Nielsen qualified for DSP is between 28 March 2014 and 27 June 2014.

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

10. 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.[9]  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.

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

11. 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.[10] 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.[11]

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

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

12. 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.[12]

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

13. A condition is “fully stabilised” if:

    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

    the person has not undertaken reasonable treatment for the condition and:

    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

    there is a medical or other compelling reason for the person not to undertake reasonable treatment.[13]

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

14. “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.[14]

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

    ISSUES FOR THE TRIBUNAL

15. It is not in dispute that Ms Nielsen had impairments during the relevant period arising from her Osteoarthritis and psychological condition, and so satisfied the first of the criteria for DSP.[15] 

    [15] Exhibit 2, See Secretary’s Statement of Facts and Contentions, paragraph [21].

16. During the hearing, Ms Nielsen acknowledged that several of the conditions identified by Dr Jayawardena (namely Diverticulitis, Gastro-oesophageal Reflux Disease and recurrent Urinary Tract infection) were not major issues and therefore, it was not necessary for them to be considered by the Tribunal. I believe that was an appropriate concession, given the doctor’s description of those conditions as being generally well managed and having minimal or limited impact on Ms Nielsen’s ability to function.[16]

    [16] See medical reports of Dr Jayawardena dated 26 March 2014 (Exhibit 1, T Documents, T 13, page142) and 16 December 2014 (Exhibit 3, page10).

17. In those circumstances, the questions that remained for me to determine were:

    ·Did Ms Nielsen’s impairments from her Arthritis conditions and psychological condition attract 20 points or more under the relevant Impairment Tables during the relevant period? and

    ·If so, did she have a continuing inability to work at the relevant time? 

18. Before dealing with the first question, there is a threshold issue that needs to be addressed, namely whether the conditions were “permanent” at the relevant time, in the sense of being fully diagnosed, treated and stabilised, as required by the rules governing the Impairment Tables. If the conditions were not permanent, no impairment rating can be assigned to them.

19. I deal with those issues below.

    CONSIDERATION

    Did the impairments attract a rating of 20 points or more?

    The Arthritis conditions

20. For the Secretary, it was contended that Ms Nielsen’s Arthritis conditions were not fully diagnosed during the relevant period. Nor were they considered to be fully treated and stabilised at that time.

21. I agree with the Secretary’s position. Dr Rahman was not consulted until 31 October 2014,[17] some four months after the relevant period expired. It was following that consultation that he provided a diagnosis of Seronegative Arthritis, likely of the psoriatic variety. The timing of that diagnosis was confirmed by Dr Jayawardena in her December report.[18] I agree that until that diagnosis was obtained, Ms Nielsen’s condition could not be considered to have been fully diagnosed, and the correct treatment was unable to be commenced. I am also reinforced in that conclusion by the fact that after a more recent consultation, Dr Rahman thought that Ms Nielsen’s symptoms pointed to a possible co-existent Fibromyalgia.[19]

    [17] Exhibit 1, T Documents, T 26, pages 180-181.

    [18] Exhibit 3, page 4.

    [19] Exhibit 5, Report of Dr Mukhlesur Rahman dated 26 June 2015.

22. Following the referral to Dr Rahman, Ms Nielsen was placed on a new medication regime, with Panadol Osteo being replaced with Methotrexate, Celebrex and Folic Acid. It was proposed that her condition be reviewed by him in three months. In those circumstances and in the absence of any evidence to the contrary, I do not believe that Ms Nielsen’s condition could be considered to have been fully treated and stabilised at the relevant time. On the material before me, it could not be said at the relevant time that the prescribed treatment was, in the words of s 6(6)(a) of the Determination, “unlikely to result in significant functional improvement to a level enabling (Ms Nielsen) to undertake work in the next 2 years”.

    For those reasons, I do not consider that the Arthritic conditions were fully diagnosed, treated and stabilised at the relevant time. As such, no impairment rating could be assigned to the impairments arising from those conditions at that time. 

    The Psychological condition

23. The Secretary contended that as both the onset of the condition and its diagnosis occurred outside the relevant period, no impairment rating could be assigned to the impairment arising from this condition.

24. Having regard to Dr Jayawardena’s December report, I agree with the Secretary’s submission. That report places the date of onset of the Depression at 17 July 2014, with the condition first being diagnosed on 1 October 2014, both those dates being outside the relevant period.[20]

    [20] Exhibit 3, page 7.

25. It is also significant that, in the context of Table 5 (Mental Health Function), diagnosis is required to 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)”.[21]  It is clear that that requirement was not satisfied until Dr Watson diagnosed the condition in her report of 1 October, over three months after the relevant period expired.

    [21] Introduction to Table 5 in the Determination.

26. For that reason, I do not consider that the condition had been fully diagnosed at the relevant time. Therefore, no rating could be assigned to it at that time.

    Summary

27. It follows from what I have said that, at the relevant time, impairment ratings could not be assigned in respect of the impairments from either condition. As a consequence, Ms Nielsen did not have 20 points or more under the Tables, and therefore did not qualify for DSP.

    Continuing Inability to Work

28. In light of my conclusion that Ms Nielsen failed to satisfy the second criterion for qualification, it is unnecessary to consider this issue.

    CONCLUSION

29. Regrettably, Ms Nielsen did not qualify for DSP at the relevant time. I appreciate that this outcome will be both frustrating and distressing for her. However, I understand that she has already lodged a new claim for DSP; this decision should not discourage her from pursuing that claim.

30. The decision under review is affirmed.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

..........................[Sgd]..............................................

Associate

Dated 21 August 2015

Date of hearing	22 July 2015
Applicant	In person
Solicitors for the Respondent	Ashley Burgess, Sparke Helmore